In this Agreement the following definitions apply:
“ACL” means the Australian Consumer Law Schedule to the Competition and Consumer Act;
“Agreement” means this Agreement and any schedule or annexure to it;
“CD” means the CD or USB Stick or other media on which the Company has placed a copy of the Program and provided it to you;
“consumer” is defined in the ACL;
“Commencement Date” means the date upon which you commence using the Program;
“Company” means World Learning Hub Pty Ltd of 14/828 High Street, East Kew, Victoria, Australia;
“Data” means the content, files, records, training materials or other data downloaded or uploaded by you by using the Program;
“Program” means the Company’s CD software program or online eLearning courses and its modules designed to allow you to use the Program and “Alise Family” training material for OH&S/ EEO training along with all information and other documentation and which the Company provides or updates from time to time;
“Licence” means the licence to use the Program granted by this Agreement;
“Licence Fee” means the amount specified by the Company from time to time and accepted by you as the fee to access the Program; and
“Licensed Number of Users” means the number of users at the Company for which the Company has agreed with you and for which you have paid the Licence Fees.
2. Grant of Licence
2.1 In consideration of the Licensee paying the Licence Fee for the Licensed Number of Users, and subject to the Licensee’s acceptance of these terms and conditions, the Company grants a non-transferable, non-exclusive Licence to the Licensee:
(a) to only use the Program for the Licensed Number of Users;
(b) to make reasonable backup copies of the Program and ancillary manuals for backup purposes only and only as required; and
(c) to use the Program for a period of 1 year from the Commencement Date.
3. Your Obligations
3.1 You agree:
(a) to comply with and supervise and control the use of the Program in accordance with the terms of this Licence;
(b) to ensure your employees, sub¬contractors and other agents who have authorised access to the Program are made aware of and comply with the terms of this Licence;
(c) not to provide or otherwise make available the Program in any form to any person other than those referred to in sub-clause (b) without the written consent of the Company;
(d) to allow the Company or its agents, at any time, upon reasonable notice, to enter the Licensees premises or at any place at which the Licensee or its employees or subcontractors or agents are using the Program, to conduct an audit of your computers and servers for the purposes of ensuring compliance with the Grant of Licence;
(e) to only use the Program for the Licensed Number of Users and use your best endeavours to comply with clause 2.1(b);
(f) not to sell, market, network, transfer, lease, licence, rent, lend or otherwise dispose of or distribute the Program; and
(g) not to decompile, disassemble, reverse engineer, copy, create a derivative work from, reconfigure or otherwise attempt to discover the source code of the Program or the Data.
4.1 You acknowledge that the Program cannot be guaranteed to be error or interruption free and you further accept that the existence of any such errors shall not be construed a breach of the Licence.
4.2 Subject to the statutory guarantees provided under the ACL, and except as the Agreement specifically states, or as contained in any express warranty provided with the Program, the Agreement does not include by implication any other term, condition or warranty in respect of the quality, merchantability, acceptability, fitness for purpose, condition, description, assembly, manufacture, or performance of the Program or any contractual remedy for their failure.
4.3 You acknowledge that the Program cannot be guaranteed error or interruption free and the Licensee further accepts that the existence of any such errors shall not be construed a breach of this Agreement or section 54 of the ACL.
4.4 In addition, whilst the Company makes every effort to ensure that its Data is up to date and reflects the requirement of the law and legislation, the Data is of a general nature and the Company does not warrant that the Data will meet the needs of every Licensee.
5. Liability and Indemnity
5.1 If you are a consumer, nothing in this Agreement restricts, limits or modifies your rights or remedies against the Company for failure of a statutory guarantee under the ACL.
5.2 Subject to clause 5.1, the Company will not be liable for any direct, indirect or consequential losses suffered by you or any third party, howsoever caused, including but not limited to the loss of turnover, profits, business or goodwill or any liability to another party as a result of any performance, delay, errors or omissions in the Program or the Data.
5.3 You acknowledge the Data and the Program and its modules does not constitute legal advice and any reference to legislation, codes of practice and guidelines is only
general in nature and for specific legal advice, Licensees should contact a
5.4 You agree to indemnify the Company against all expenses, losses, damages, liabilities and costs (including indemnity from all legal costs) that the Company or a third party may sustain or incur as a result of:
(a) any breach of this Agreement by you or your employees, agents or contractors;
(b) any negligent or unlawful act or omission of you or any of your employees, agents or contractors;
(c) your use of the Program and the Data;
(d) a third party’s use or reliance on the Data; and
(e) a breach of any third party’s copyright arising in relation to the Data.
6.1 All right, title, interest, ownership and intellectual property rights in and to the Program and the Data, and all copies thereof, are and at all times shall remain the property of the Company.
6.2 You acknowledge that the Program is the subject of copyright and that you will not during or any time after the expiry or termination of this Licence permit any act which infringes that copyright and, without limiting the generality of the foregoing, you specifically acknowledge that you may not copy the Program except as otherwise expressly authorised by this Licence.
6.3 You will indemnify the Company fully against all liabilities, costs and expenses that the Company may incur to a third party as a result of its breach of the copyright provisions or any other provision of this Licence.
6.4 You have no rights in the Program or the Data other than those set out in this Agreement. and you must not sell, licence, sub-licence, assign, transfer or in any other way encumber, exploit or deal with (including as a result of succession, or a change in ownership or control) the Licence, Program the Data or the intellectual property rights subsisting in the Program and Data without the Company’s prior written consent.
7. Termination of Licence
7.1 This Licence may be terminated immediately by the Company in the following circumstances:
(a) if you are in breach of any term of this Licence (including any obligation for the payment of money) and fail to remedy the breach within 14 days of receiving written notice from the Company;
(b) if you allow more than the Licensed Number of Users to use the Program without the Company’s prior written authority or fail to comply with clause 2.1(b);
(c) if you, being a corporation, become insolvent as defined in the Corporations Law;
(d) if you, being a firm or partnership, are dissolved;
(e) if you, being an individual, become the subject of bankruptcy proceedings as defined in the Bankruptcy Act;
(f) if you deliberately or knowingly provide incorrect or out of date Data;
(g) if you publish or consent to the publishing of any unlawful, inflammatory, offensive or defamatory material on the internet or using the Company’s website or using the Program or any other means and do not remove or retract the material within 24 hours of being requested to do so; or
(h) if you destroy the Program for any reason.
7.2 If a breach of this Agreement is incapable of remedy, the Company may terminate this Agreement immediately on written notice to you.
7.3 On termination of this Agreement, for whatever reason, you must cease using the Program and destroy the CD discs and any copies of any materials that you have printed or copied, and you will no longer have any access or right to use the Data.
7.4 Termination pursuant to this clause will not affect any rights or remedies which the Company may have otherwise under this Licence or at law, including but not limited to the right to demand additional payments for the cost of additional licences to cover unauthorised users.
The benefit of this Licence must not be dealt with in any way by you (whether by assignment, sub-licensing or otherwise) without the Company’s prior written consent.
Failure or neglect by either party to enforce at any time any of the provisions of this Licence will not be construed or deemed to be a waiver of that party’s rights under this licence.
10. Governing Law
This Licence will be governed by and construed according to the law of the State of Victoria and Australia.
If all or any part of any provision is judged invalid or unenforceable, in all the circumstances, it will be deemed to be deleted and will not affect the validity or enforceability of the remaining provisions.
Any notice required or authorised to be given or served pursuant to this Agreement will be deemed to have been duly received by the person to whom it is addressed on the same day when forwarded by electronic mail, facsimile, or personally delivered, or forty-eight (48) hours after posting by ordinary prepaid post.
13. Force Majeure
The Company will not be liable for any delay in or failure of performance if such delay or failure arises from causes beyond its reasonable control including without limitation act of God, war, civil commotion, fire, any action, inaction, demand, order, restraint, restriction, requirement, prevention, frustration or hindrance by or of any person, government or competent authority, unavoidable accident, and any other cause whether specifically referred to above or otherwise which is not within its reasonable control.
14. Entire Agreement
This is the entire agreement of the parties concerning the subject matter of this Agreement. There is no other agreement, understanding, warranty or representation, whether oral or written, binding the parties concerning any aspect of this Agreement.
You acknowledge, by purchasing that the above terms and conditions have been read and understood and contains the entire understanding of you and the Company as to the grant of the Licence.