Terms & Conditions

Read the following carefully:

A. Subscriptions automatically renew unless you give us at least 60 days’ notice before the end of the Initial Subscription Period or then-current Subscription Renewal Period (as applicable).

B. To the extent permitted by law, all Charges are non-refundable and non-cancellable other than if you validly terminate this Contract because of our breach.

C. You are responsible for the acts and omissions of any user of the Online Course Access as if they were your own acts or omissions (regardless of whether that user was authorised by you or not).

D. You acknowledge and agree that we are not responsible for your use of the Online Course Access, or any actions you take, or conclusions you reach based on your use of the Online Course Access.

E. Important restrictions, obligations, and disclaimers in relation to Online Course Access are set out in clauses 5 and 8. You must review these carefully and, in several areas, it is your responsibility to ensure that any users observe these terms.

F. Important limitations of our liability are set out in clause 9. Subject to exclusions and further limitations, our maximum total liability to you in connection with this Contract:

a. in any 12-month period is limited to the actual Charges paid by you under this Contract in the 12-month period preceding the event giving rise to the claim; and

b. in total is limited to the actual Charges paid by you under this Contract.

1. Who we are and how to contact us

1.1 We are etrainu Pty Ltd ABN 20 117 967 030 (we, us and our).

1.2 To contact us, please click here and get in touch.

2. These Terms, Orders and the Contract

2.1 We use bold text in these Terms to identify where a word has been given a specific meaning. For example, you and your refer to the party that is identified as our customer in an Order.

2.2 We operate a website (Site) to display courses and other training content (Online Courses). You can use the Site to access Online Courses in accordance with these Terms (Online Course Access).

2.3 These terms and conditions (Terms) apply to any Online Course Access by you. If you do not agree to these Terms, you cannot access Online Courses.

2.4 Please follow the prompts to place an order using the Site (Order). Occasionally, we may require you to use our offline order form to place an Order. Our acceptance of your Order takes place when we confirm that we have accepted your Order, either by email or another written confirmation (such as an online message), at which point and on which date (Commencement Date) the Contract between you and us will come into existence.

2.5 The Contract between you and us consists of the following parts and to the extent of any inconsistency, each part will prevail in the following order (with the first-named item prevailing to the greatest extent):

(a) the Order; then

(b) these Terms; then

(c) the Acceptable Use Policy.

2.6 If you are an Organisation, the Order may specify the number of your employees, officers, contractors, and agents (Users) that are allowed to access an Online Course as part of your Online Course Access. The Order may contain other use restrictions.

3. Duration of Online Course Access and Subscriptions

3.1 Unless we agree otherwise, you have 12 months to complete an Online Course (Access Period). After that 12-month period, we can remove your access to that Online Course. After your access to an Online Course has expired, you may need to pay again if you want to access that Online Course.

3.2 You may have the choice to access Online Courses by way of a Subscription.

3.3 Any Subscription commences on the Subscription Start Date set out in the Order and continues for:

(a) the Initial Subscription Period set out in the Order; and

(b) any Subscription Renewal Periods, (together, the Subscription Period).

3.4 Unless either party gives 60 days’ notice before the expiry of the Initial Subscription Period, the Subscription will renew for a period equal to the Initial Subscription Period (Subscription Renewal Period).

3.5 Unless either party gives 60 days’ notice before the expiry of a Subscription Renewal Period, the Subscription will renew for a further Subscription Renewal Period (and will continue to do so).

3.6 If you are an individual, we may (in our discretion) permit you to continue to access your account with us after the end of the Access Period or Subscription Period (as applicable), or following the termination or expiry of this Contract. In that case, you would be able to access your training record and/or order additional Online Course Access.

3.7 If you are an organisation and your Order states that you may give your Users Online Course Access, we may (in our discretion) permit your Users to continue to access their accounts with us after the end of the Access Period or Subscription Period (as applicable), or following the termination or expiry of this Contract. In that case, your Users would be able to access their training record and/or order additional Online Course Access for themselves.

4. Charges and payment

4.1 In consideration of us providing Online Course Access, you must pay our charges (Charges) in accordance with this clause 4. Unless otherwise agreed, we will take your first payment upon acceptance of your Order. Payment may be made by following the relevant Site procedures or as otherwise agreed with us.

4.2 The Charges are the prices quoted by us at the time you submit your Order.

4.3 Our Charges are exclusive of goods and services tax (GST). Where GST is payable in respect of some or all of the Online Course Access, you must pay us such additional amounts in respect of GST, at the applicable rate, at the same time as you pay the Charges.

4.4 Unless otherwise agreed, payment for the Online Course Access is in advance. To the extent permitted by law, all Charges are non-refundable and non-cancellable other than if you validly terminate this Contract because of our breach.

4.5 If we agree that you can pay the Charges other than by way of payment in advance, you must pay any Charges within 14 days of the date of our corresponding invoice.

4.6 You can pay for the Online Course Access using a debit card or credit card. If you provide credit card information to us, you authorise us to charge that credit card for all Charges and an amount to cover any fees we incur in connection with charging that credit card. We will send you an electronic invoice following payment. For any failed or cancelled payments, a $20 administration fee may be charged.

4.7 If you fail to make a payment under the Contract by the due date, then, without limiting our other remedies, you will have to pay interest on the amount unpaid at the daily 11.00 am cash rate quoted on Reuters page RBA30 plus 2%. Interest accrues on a day-to-day basis from the due date up to and including the date of actual payment.

4.8 Unless otherwise agreed, the Charges are payable in Australian Dollars.

4.9 You acknowledge and agree that we can pursue payment collection through formal debt collection third parties if:

(a) any amount owing by you under this Contract is 30 or more days overdue; or

(b) you have made no effort to resolve a payment dispute.

All fees and costs incurred in securing these payments will be added to the total payable amount at the time of collection including third-party collection fees and interest.

4.10 Unless we agree otherwise, if you add a new feature or extend your agreed usage allowance (or similar), you will be invoiced for the corresponding amount for the remainder of the corresponding Subscription Period or Access Period (as applicable) regardless of how long remains in that Subscription Period or Access Period. Unless otherwise agreed, there is no pro-rata treatment of such Charges.

4.11 At least 90 days prior to the start of that Subscription Renewal Period, we may submit revised Subscription pricing that will apply during that Subscription Renewal Period.

4.12 You may have the option to purchase credits (Credits) for use on the Site. Credits are available for 12 months from the date of purchase, after which they expire. Unused Credits do not rollover into the next 12-month period.

4.13 For the avoidance of doubt, Course Access will be deemed to have been purchased by you at the time at which you have complied with all relevant Site procedures to enable a key code to be issued to you for the Course Access selected.

5. Your obligations and responsibilities

5.1 It is your responsibility to ensure that:

(a) your Order is complete and accurate;
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(b) you provide us with such information and materials we may reasonably require in order to supply any Online Course Access, and ensure that such information is complete and accurate in all material respects;

(c) you obtain and maintain all necessary licences, permissions, and consents which may be required for any Online Course Access before the date on which the Online Course Access (as applicable) is to start; and

(d) you comply with all applicable laws, including health and safety laws, applicable to your receipt and use of the Online Course Access.

5.2 If our ability to provide the Online Course Access is prevented or delayed by any failure by you to fulfil any obligation listed in 5.1:

(a) we will be entitled to suspend the Online Course Access until you remedy Your Default, and to rely on Your Default to relieve us from the obligation to provide the Online Course Access, in each case to the extent Your Default prevents or delays the performance of the Online Course Access (as applicable). In certain circumstances Your Default may entitle us to terminate the Contract under 11;

(b) we will not be responsible for any costs or losses you sustain or incur arising directly or indirectly from our failure or delay to provide the Online Course Access; and

(c) it will be your responsibility to reimburse us on written demand for any costs or losses we sustain or incur arising directly or indirectly from Your Default.

5.3 You are responsible for all use of the Online Course Access, and must ensure that no person uses the Online Course Access:

(a) in breach of this Contract;

(b) for any purpose other than your internal business (if you are a business) or personal purposes (if you are not a business);

(c) in a manner that breaks any law or infringes any person’s rights;

(d) in any way that damages, interferes with or interrupts the supply of the Online Course Access;

(e) to transmit, publish, communicate, view or create any material that is or may be pornographic, defamatory, offensive, menacing, unwanted, obscene, illegal or unlawful;

(f) in a way that infringes any third party’s intellectual property rights; or

(g) in a way that disrupts, misuses or excessively uses our (or any of our third party service provider’s) hardware, bandwidth access, storage space or our (or any of our third party service provider’s) other resources.

5.4 Additionally, you must not:

(a) permit any third party to access Online Courses;

(b) lease, sublicence, resell or otherwise distribute Online Course Access or content from an Online Course;

(c) create derivate works based on any Online Course or our Site;

(d) copy, frame or mirror any part or content of any Online Course or our Site;

(e) reverse engineer any Online Course or our Site; or

(f) access any Online Course or our Site in order to:

(i) build a competitive product or service, or

(ii) copy any features, functions or graphics of any Online Course or our Site,

and must ensure that no person does any of the acts described in clause 5.4(a) to 5.4(f).

5.5 You are responsible for the acts and omissions of any user of the Online Course Access as if they were your own acts or omissions (regardless of whether that user was authorised by you or not).

5.6 You acknowledge and agree that you (and each User, if applicable) that accesses an Online Course is required to accept the Acceptable Use Policy.

5.7 Subject to clause 9.4, you acknowledge and agree that we are not responsible for your use of the Online Course Access, or any actions you take or conclusions you reach based on your use of the Online Course Access.

6. Intellectual property rights

6.1 As between you and us, all intellectual property rights in or arising out of or in connection with Online Course Access, including any improvements and modifications to the Site or any Online Course, will be owned by us.

6.2 All intellectual property rights in any materials developed or created by us or on our behalf for you as part of Online Course Access vest in us immediately from creation.

6.3 We agree to grant you a fully paid-up, worldwide, non-exclusive, non-sublicensable, non-transferable, royalty-free licence during the Subscription Period or Access Period (as applicable) to access the Online Courses as specified in your Order for use in your business (if you are a business) or for your personal purposes (if you are not a business) in accordance with this Contract. You may not sub-license, assign or otherwise transfer the rights granted in this clause 6.3.

6.4 You grant us a fully paid-up, non-exclusive, royalty-free, worldwide, transferable, sub-licensable, irrevocable, perpetual licence to use, copy, modify or incorporate any materials, suggestions, enhancement requests, recommendations feedback or other content provided by you (including users) relating to the operation of the Site and any Online Course Access, for the purpose of providing and improving the Online Course Access and/or running analytics in connection with use of the Online Course Access.

7. Personal Information

7.1 Each party agrees to comply with its obligations under the Privacy Act 1988 (Cth) and any other legislation affecting privacy, personal information or the collection, handling, storage, processing, use or disclosure of data to the extent that such legislation applies to that party in connection with performance of this Contract (Privacy Laws).

7.2 You agree to procure all permissions and make all disclosures necessary to allow us to obtain, use and disclose the Personal Information (as that term is used in the Privacy Act 1988 (Cth)) that you and any user (including your Users, if any) provide in the course of this Contract, for the purpose of this Contract (and any other purpose set out in this Contract and/or our privacy policy).

7.3 You must give us all assistance required and comply with all directions given by us from time to time in relation to our privacy policy, our compliance with the Privacy Laws or any investigation, request or enquiry (formal or otherwise) from the Office of the Australian Information Commissioner or any other regulatory body regarding the information disclosed to us under this Contract.

7.4 You must notify us immediately if you become aware of any breach or likely breach of this clause 7.

7.5 You must ensure that your computer network is secure. We are not responsible for the security of your data or your computer network.

8. Restrictions, obligations and disclaimers

8.1 You represent and warrant to us that:

(a) all information given to us in relation to this Contract is correct, complete and not misleading; and

(b) any material that you supply and that is used by us will not and does not infringe or breach any third party rights or terms and conditions.

8.2 Subject to clause 9.4, and to the extent permitted by law:

(a) we do not guarantee that the Online Courses and Online Course Access, or any services provided in connection to the Online Courses or Online Course Access, will always be available, uninterrupted or be error-free;

(b) the Online Courses and Online Course Access are provided on an “as is” and “as available” basis, and (except as set out in these Terms) we make no representations or warranties, express or implied, regarding the operation or availability of the Online Courses or Online Course Access;

(c) we have no liability in relation to the content of Online Courses that has been provided by third parties;

(d) we may change the content of an Online Course from time-to-time;

(e) without limiting the generality of clauses 8.2(a) and 8.2(b), we do not warrant that the Online Courses or Online Course Access will meet your requirements, will operate in any combination that may be selected for use by you or in combination with other software;

(f) we may suspend or withdraw or restrict the availability of all or any part of the Online Courses or Online Course Access for business and operational reasons, and will try to give you reasonable notice of any suspension or withdrawal;

(g) we do not warrant that all software errors, defects or inefficiencies will be corrected and we do not assume any liability for failure to correct any such errors, defect or inefficiency; and

(h) we make no warranty, and you assume the entire risk, as to the capabilities, suitability, use or performance of any Online Course Access under this Contract.

8.3 Among other things, the operation and availability of the systems used for accessing the Online Courses, including computer networks and the internet, can be unpredictable and may from time to time interfere with or prevent access to the Online Courses. Subject to clause 9.4, we are not responsible or liable for any of these failures.

8.4 Subject to clause 9.4 and to the extent permitted by applicable law, we exclude all express, statutory and implied conditions, guarantees and warranties in relation to any Online Courses and Online Course Access other than the warranties expressly set out in this Contract.

8.5 If you choose, or you are provided with, a user identification code, password or any other piece of information as part of our security procedures, you must treat such information as confidential. You must not disclose it to any third party. We have the right to disable any user identification code or password, whether chosen by you or allocated by us, at any time, if in our reasonable opinion you have failed to comply with any of the provisions of these Terms. If you know or suspect that anyone other than you knows your user identification code or password, you must promptly notify us.

8.6 Online Course Access is directed to users who are at least 15 years old and are residing in and viewing Online Courses within Australia. We do not represent that Online Course Access is appropriate for use or available in other locations. If you access Online Courses from outside Australia, you do at your risk and you are responsible for compliance with laws applicable to you accessing Online Courses from your location.

8.7 If you are an organisation, and a User is less than 15 years old, you are responsible for ensuring that parental consent has been provided in relation to that User’s access to Online Courses. We may require you to demonstrate your compliance with this clause 8.7.

8.8 Any descriptions or illustrations on our site are published for the sole purpose of giving an approximate idea of the products and services described in them.

8.9 You accept that features, functions, units of measurement and terminology may differ between countries and features designed for one geographical territory or country may not suit or be available to other countries.

8.10 Introductory, trial or promotional access to Online Courses may be subject to additional terms.

8.11 We may, by exception and at our discretion, provide you with a download of content for use on your own e-learning platform. Where this happens, you acknowledge and agree that we have no obligation to keep that material up-to-date. You also agree to comply with any licensing and use restrictions upon which we may condition that use.

9. Limitation of liability

9.1 Nothing in this Contract limits or excludes our liability:

(a) for death or personal injury caused by our negligence or wilful misconduct or that of our employees, as applicable;

(b) for fraud or fraudulent misrepresentation by us or our employees, as applicable; or

(c)where liability cannot be limited or excluded by applicable law.

9.2 Subject to 9.1 and clause 9.4, we will not be liable to you, whether in contract, tort (including negligence) or otherwise, for any special, indirect or consequential loss arising under or in connection with this Contract, including any:

(a) loss of profits;

(b) loss of sales or business;

(c) loss of production;

(d) loss of use or loss arising from loss of use;

(e) loss of agreements or contracts;

(f) loss of business opportunity;

(g) loss of anticipated savings;

(h) loss of or damage to goodwill;

(i) loss of reputation; or

(j) loss of use or corruption of software, data or information.

9.3 Subject to 9.1, 9.2 and 9.4, our maximum aggregate liability to you for any loss or damage or injury arising out of or in connection with this Contract, including any breach by us of this Contract however arising, under any indemnity, in tort (including negligence), under any statute, custom, law or on any other basis:

(a) in any 12-month period is limited to the actual Charges paid by you under this Contract in the 12-month period preceding the matter or event giving rise to the claim; and

(b) in total is limited to the actual Charges paid by you under this Contract.

9.4 Nothing in this Contract is intended to have the effect of excluding, restricting or modifying the application of all or any of the provisions of Part 5-4 of the Australian Consumer Law in Schedule 2 of the Competition and Consumer Act 2010 (Cth) (ACL), or the exercise of a right conferred by such a provision, or any liability of ours in relation to a failure to comply with a guarantee that applies under Division 1 of Part 3-2 of the ACL to a supply of services and/or services.

9.5 If we are liable to you in relation to a failure to comply with a guarantee that applies under Division 1 of Part 3-2 of the ACL that cannot be excluded, our total liability to you for that failure is limited to, at our option, in the case of a supply of goods, us replacing the goods or paying the cost of having the goods repaired or replaced or supplying equivalent goods or repairing the goods, or in the case of a supply of services, us supplying the services again or paying the cost of having the services supplied again.

9.6 Subject to clause 9.4, any claim by you against us for loss or damage however caused (including by the negligence of us), suffered by you in connection with this Contract must be made within six months of you becoming entitled to make the claim and any claim not made within six months is absolutely barred.

10. Confidentiality

10.1 We each undertake that we will not at any time disclose to any person any confidential information concerning one another’s business, affairs, customers, clients or suppliers, except as permitted by 10.2.

10.2 We each may disclose the other’s confidential information:

(a) where the information is in the public domain as at the date of this Contract (or subsequently becomes in the public domain other than by breach of any obligation of confidentiality binding on either of us);

(b) if either of us is required to disclose the information by applicable law or the rules of any recognised stock exchange or other document with statutory content requirements, provided that the recipient has to the extent practicable having regard to those obligations and the required timing of the disclosure consulted with the provider of the information as to the form and content of the disclosure;

(c) where the disclosure is expressly permitted under this Contract;

(d) if disclosure is made to our respective officers, employees and professional advisers to the extent necessary to enable either of us to properly perform our obligations under this Contract or to conduct our business generally, in which case we each must ensure that such persons keep the information secret and confidential and do not disclose the information to any other person;

(e) where the disclosure is required for use in legal proceedings regarding this Contract; or

(f) if the party to whom the information relates has consented in writing before the disclosure.

10.3 Each of us may only use the other’s confidential information for the purpose of fulfilling our respective obligations under the Contract.

10.4 You agree to allow us to reference you as a customer using our technology on our website and in print copy or marketing material. On request, you will provide us with an approved company logo that we may publish on our website and/or marketing material to communicate such relationship.

11. Term and termination

11.1 This Contract commences on the Commencement Date and continues until the earlier of:

(a) the expiry or completion of all Online Course Access described in the Order; and

(b) termination in accordance with this Contract.

11.2 Without affecting any of our other rights, we may suspend the performance of the Online Course Access, or terminate this Contract with immediate effect by giving written notice to you if:

(a) you fail to pay any undisputed amount due under this Contract on the due date for payment and you remain in default not less than 30 days after being notified in writing to make such payment;

(b) you commit a material breach of any other term of this Contract and that breach is irremediable or (if that breach is remediable) you fail to remedy that breach within a period of 14 days after being notified in writing to do so;

(c) we are directed to do so by a regulatory body or similar;

(d) an insolvency event occurs in relation to you; or

(e) if you are a Company, you undergo a change of control.

11.3 Upon termination of this Contract, we may remove any content, data and material related to your Online Course Access and it is your responsibility to remove or archive that information prior to termination of this Contract.

11.4 Upon termination of this Contract, you must immediately:

(a) cease accessing any Online Course;

(b) return to us any of our confidential Information and intellectual property rights in your possession or control; and

(c) pay us the Charges for all Online Course Access.

11.5 Termination of this Contract does not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages for any breach of the Contract that existed at or before the date of termination.

11.6 The provisions of clauses 6.4, 7, 8, 9, 10, 11, 13, 16 and 26 and any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry will have full force and effect after termination or expiry of this Contract.

12. Support

12.1 Unless we agree otherwise, we have no obligation to provide any services or products to you in relation to the Online Course Access, other than to use reasonable endeavours to provide Online Course Access.

13. Audit

13.1 You will maintain complete and accurate records concerning:

(a) users enrolled in any Online Course;

(b) the distribution of our materials (including pursuant to clause 8.11); and

(c) Log-Ins and passwords (if applicable), for a period of at least seven (7) years following the expiry or earlier termination of this Contract.

13.2 On our request, you must allow us or a third party nominated by us to access during business hours your records and any premises, systems, equipment, personnel and information relating to this Contract in order to audit your compliance with this Contract.

14. Training Partnership

14.1 This clause 14 applies if we have agreed that you are an organisation that is permitted to facilitate its Users to access Online Courses.

14.2 A Training Partnership will be established with a User when either:

(a) A training provider or similar entity (Provider) establishes a User’s profile on the Site, in which case the Training Partnership will be with the Provider (Training Partner), or

(b) You or a User establishes a profile on the Site in which case that Training Partnership will be between us and the User (Training Partner).

14.3 The Training Partner will always be able to access a User’s:

(a) information gathered at the point in time at which training was delivered,.

(b) information uploaded to the site by the Training Partner, and

(c) results of training provided or distributed by Training Partner.

14.4 A Training Partner may, in addition to the information referred to in the preceding paragraph, have access to the following information:

(a) a User’s contact details

(b) an employer record of a User’s contact details which relate to contact details current during the User’s period of employment with them;

(c) training Certificates or Statements of Attainment in respect of training distributed or provided by the Training Partner;

(d) any training, information or records you or the User have decided to make public through the permissions on the Site;

(e) the User’s results of training provided by the Training Partner

(f) records;

(g) training plans;

(h) surveys;

(i) notes; and

(j) any other Information which may be contained on the Site in relation to a User.

14.5 A Training Partner will also be able to upload Information about Users to the Site. This information may be uploaded so that Users can access it, or it may be uploaded so that only the Training Partner can access it. A Training Partner may also amend certain Information about Users on the Site.

14.6 You or Users may allow any Training Partner access to third-party provider information, or User-created information by making the appropriate selections in your My Training, My Partnerships and My Training Plan pages of the Site. This occurs through use of the Permissions tab and through making information public. Any information which you or a User choose to make public can be viewed by any of a User’s Training Partners.

14.7 Once a Training Partnership is ended:

(a) Users will no longer have access to the Training provided by the Training Partner;

(b) the Training Partner will not have access to any information which comes into existence after the date on which the Partnership is ended, but the Training Partner will still have access to information to which it was entitled to access prior to the date on which the Training Partnership ended; and

(c) the Training Partner may continue to upload information to the Site which neither you, the User nor any other Provider can see, but that Information may still be viewed by us.

15. Force majeure

15.1 We will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations under the Contract that is caused by any act or event beyond our reasonable control (Event Outside Our Control).

15.2 If an Event Outside Our Control takes place that affects the performance of our obligations under the Contract:

(a) we will contact you as soon as reasonably possible to notify you; and

(b) our obligations under the Contract will be suspended and the time for performance of our obligations will be extended for the duration of the Event Outside Our Control. We will arrange a new date for performance of the Online Course Access with you after the Event Outside Our Control is over.

16. Dispute resolution

16.1 The parties agree to use best endeavours to resolve in good faith any dispute concerning this Contract.

16.2 If a dispute arises between the parties that cannot be resolved promptly, either party may notify the other party of a formal dispute. Each party must nominate a senior executive to meet within 7 days of the notice (or another agreed period) to try and resolve the dispute.

16.3 Any dispute, controversy or claim arising out of, relating to or in connection with this contract, including any question regarding its existence, validity or termination, shall be resolved by arbitration in accordance with the ACICA Arbitration Rules. The seat of arbitration shall be Brisbane, Australia. The language of the arbitration shall be English. The number of arbitrators shall be one.

17. Notices

17.1 When we refer to “in writing” in these Terms, this includes email.

17.2 Any notice or other communication given by one of us to the other under or regarding the Contract must be in writing and be delivered personally, sent by pre-paid post or email.

17.3 A notice or other communication is deemed to have been received:

(a) if delivered by hand to the nominated address, when delivered to the nominated address;

(b) if sent by pre-paid post, at 9.00 am (addressee’s time) on the second Business Day after the date of posting; or

(c) if sent by email, at the time the email is sent (as recorded on the device from which the sender sent the email) unless the sender receives an automated message that the email has not been delivered.

17.4 In proving the service of any notice, it will be sufficient to prove, in the case of a letter, that such letter was properly addressed, stamped and placed in the post and, in the case of an email, that such email was sent to the specified email address of the addressee.

17.5 The provisions of this clause will not apply to the service of any proceedings or other documents in any legal action.

18. No waiver

18.1 Neither of us may rely on the words or conduct of any other party as being a waiver of any right, power or remedy arising under or in connection with this Contract unless the other party or parties expressly grant a waiver of the right, power or remedy. Any waiver must be in writing, signed by the party granting the waiver and is only effective to the extent set out in that waiver.

18.2 Words or conduct referred to in 18.1 include any delay in exercising a right, any election between rights and remedies and any conduct that might otherwise give rise to an estoppel.

19. Assignment and novation

19.1 We may assign or transfer our rights and obligations under the Contract to another entity.

19.2 You may only assign or transfer your rights or your obligations under the Contract to another person if we agree in writing.

19.3 A breach of 19.2 by you entitles us to terminate this Contract.

20. Severability

20.1 If the whole or any part of a provision of this Contract is or becomes invalid or unenforceable under the law of any jurisdiction, it is severed in that jurisdiction to the extent that it is invalid or unenforceable and whether it is in severable terms or not.

20.2 20.1 does not apply if the severance of a provision of this Contract in accordance with that clause would materially affect or alter the nature or effect of the parties’ obligations under this Contract.

21. Entire agreement

Unless we have separately entered into a written contract with you that expressly replaces or modifies these Terms, the Contract is the entire agreement between you and us in relation to its subject matter. You acknowledge that you have not relied on any statement, promise or representation or assurance or warranty that is not set out in the Contract.

22. Subcontractors

We may engage subcontractors to provide any part of the Online Course Access.

23. Relationship of the parties

23.1 This Contract is not intended to create a relationship between the parties of partnership, joint venture, agency or employer-employee. Each party has no authority to create, assume or otherwise enter into any agreement that imposes rights or obligations on the part of the other party.

23.2 The Contract is between you and us. No other person has any rights to enforce any of its terms.

24. Variation

24.1 We amend these terms from time to time. We will give you written notice of any change to these Terms, and:

(a) if the change is material and is not detrimental to you, or the change is not material, that change will have effect from the latest of:

(i) the date identified in the written notice; and

(ii) 30 days from the date of the written notice; and

(b) if the change is material and is detrimental to you, we will contact you to discuss amending these Terms.

24.2 These Terms were most recently updated on March 11, 2021.

25. Announcements

No party will make, or permit any person to:

‍(a) make any public announcement statement, press release or other publicity or marketing materials concerning the existence, subject matter or terms of this Contract, the wider transactions contemplated by it, or the relationship between the parties; or

(b) use the other party’s trade marks, service marks, trade names, logos, symbols or brand names, in each case;

without the prior written consent of the other party, such consent not to be unreasonably withheld, conditioned or delayed, except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.

26. Governing law and jurisdiction

These terms and conditions, their subject matter and their formation, are governed by Queensland law. You and we both agree that the courts in Queensland will have non-exclusive jurisdiction.

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Schedule 1: Online Training Module Access, Online Training Module Development and White-labelling

1. Online Training Module Access

1.1 Online Training Module Access is a category of Services provided by etrainu.

1.2 Clause 1 of this Schedule will only apply if identified in a Statement of Work. However, clause 1 of this Schedule only applies to the Online Training Module Access identified in the Statement of Work.

1.3 etrainu operates a website (Site) to display courses and other training content (Online Training Modules).

1.4 Where etrainu provides Online Training Module Access, the Customer can use the Site to access Online Training Modules.

1.5 The Statement of Work will specify:

(a) the initial period in which etrainu will provide Online Training Module Access (Initial Period);

(b) the number of employees, officers, contractors and agents (Users) that are allowed to access an Online Training Module as part of etrainu’s provision of Online Training Module Access and other use restrictions;

(d) the SOW Charges

1.6 Unless otherwise agreed in a Statement of Work:

(a) unless either party gives 60 days’ notice before the expiry of the Initial Period, Online Training Module Access will renew for a period equal to the Initial Period (Renewal Period); and

(b) unless either party gives 60 days’ notice before the expiry of a Renewal Period, the Online Training Module Access will renew for a further Renewal Period (and will continue to do so).

1.7 etrainu may (in its discretion) permit the Customer’s Users to continue to access their accounts with etrainu after the end of the Initial Period or Renewal Period (as applicable) or following the termination or expiry of this agreement. In that case, the Customer’s Users would be able to access their training record and transcripts and/or order access to Online Training Modules for themselves.

Customer obligations and responsibilities

1.8 The Customer is responsible for all use of Online Training Module Access, and must ensure that no person uses Online Training Module Access:

(a) in breach of this agreement;

(b) for any purpose other than the Customer’s internal business;

(c) in a manner that breaks any law or infringes any person’s rights (including, but not limited to, Intellectual Property Rights);

(d) in any way that damages, interferes with or interrupts the supply of Online Training Module Access;

(e) to transmit, publish, communicate, view or create any material that is or may be pornographic, defamatory, offensive, menacing, unwanted, obscene, illegal or unlawful; or

(f) in a way that disrupts, misuses or excessively uses etrainu’s (or any of etrainu’s third party service provider’s) hardware, bandwidth access, storage space or other resources.

1.9 Additionally, the Customer must not:

(a) permit any third party to access Online Training Modules;

(b) lease, sublicence, resell or otherwise distribute access to Online Training Modules or content from an Online Training Module;

(d) copy, frame or mirror any part or content of any Online Training Module or the Site;

(e) reverse engineer any Online Training Module or the Site; or

(f) access any Online Training Module or the Site in order to:

(i) build a competitive product or service, or

(ii) copy any features, functions or graphics of any Online Training Module or the Site,

(g) and must ensure that no person does any of the acts described in clauses 1.9(a) to 1.9(f) of this Schedule.

1.10 This Customer is responsible for the acts and omissions of any user of the Online Training Module Access as if they were its own acts or omissions (regardless of whether that user was authorised by the Customer or not).

1.11 The Customer acknowledges and agrees that it and each User that accesses an Online Training Module is required to accept the Acceptable Use Policy available at https://etrainu.com/legal/acceptable-use-policy-au.

1.12 Subject to clause 12.4, the Customer acknowledges and agrees that etrainu is not responsible for the Customer’s use of the Online Training Module Access, or any actions it takes or conclusions it reaches based on its use of the Online Training Module Access.

1.13 The Customer must ensure that its computer network is secure. etrainu is not responsible for the security of the Customer’s data or its computer network.

1.14 The Customer represents and warrants to etrainu that:

(a) all information given to etrainu in relation to this agreement is correct, complete and not misleading; and

(b) any material that the Customer supplies and that is used by etrainu will not and does not infringe or breach any third party rights or terms and conditions.

Disclaimers and further obligations

1.15 Subject to clause 12.4, and to the extent permitted by law:

(a) etrainu does not guarantee that the Online Training Modules and Online Training Module Access, or any services provided in connection to the Online Training Modules or Online Training Module Access, will always be available, uninterrupted or be error-free;

(b) the Online Training Modules and Online Training Module Access are provided on an "as is" and "as available" basis, and (except as set out in this agreement) etrainu makes no representations or warranties, express or implied, regarding the operation or availability of the Online Training Modules or Online Training Module Access;

(c) etrainu has no liability in relation to the content of Online Training Modules that has been provided by third parties;

(d) etrainu may change the content of an Online Training Module from time-to-time;

(e) without limiting the generality of clauses 1.15(a) and 1.15(b) of this Schedule, etrainu does not warrant that the Online Training Modules or Online Training Module Access will meet the Customer’s requirements, will operate in any combination that may be selected for use by the Customer or in combination with other software;

(f) etrainu may suspend or withdraw or restrict the availability of all or any part of the Online Training Modules or Online Training Module Access for business and operational reasons, and will try to give the Customer reasonable notice of any suspension or withdrawal;

(g) etrainu does not warrant that all software errors, defects or inefficiencies will be corrected and etrainu does not assume any liability for failure to correct any such errors, defect or inefficiency; and

(h) etrainu makes no warranty, and the Customer assumes the entire risk, as to the capabilities, suitability, use or performance of any Online Training Module Access under this agreement.

1.16 Among other things, the operation and availability of the systems used for accessing the Online Training Modules, including computer networks and the internet, can be unpredictable and may from time to time interfere with or prevent access to the Online Training Modules. Subject to clause 12.4, etrainu is not responsible or liable for any of these failures.

1.17 Subject to clause 12.4 and to the extent permitted by applicable law, etrainu excludes all express, statutory and implied conditions, guarantees and warranties in relation to any Online Training Modules and Online Training Module Access other than the warranties expressly set out in this agreement.

1.18 If the Customer chooses, or is provided with, a user identification code, password or any other piece of information as part of etrainu’s security procedures, the Customer must treat such information as confidential. The Customer must not disclose it to any third party. etrainu has the right to disable any user identification code or password, whether chosen by the Customer or allocated by etrainu, at any time, if in etrainu’s reasonable opinion the Customer has failed to comply with any of the provisions of this agreement. If the Customer knows or suspects that anyone other than the Customer or (where relevant) its Users knows the Customer’s user identification code or password, the Customer must promptly notify etrainu.

1.19 Online Training Module Access is directed to users who are at least 15 years old and are residing in and viewing Online Training Modules within Australia. etrainu does not represent that Online Training Module Access is appropriate for use or available in other locations. If the Customer accesses Online Training Modules from outside Australia, it does so at its own risk and it is responsible for compliance with laws applicable to accessing Online Training Modules from its location.

1.20 If the Customer is an organisation, and a User is less than 15 years old, the Customer is responsible for ensuring that parental consent has been provided in relation to that User’s access to Online Training Modules. etrainu may require the Customer to demonstrate its compliance with this clause 1.20 of this Schedule.

1.21 Any descriptions or illustrations on etrainu’s site are published for the sole purpose of giving an approximate idea of the products and services described in them.

1.22 The Customer accepts that features, functions, units of measurement and terminology may differ between countries and features designed for one geographical territory or country may not suit or be available to other countries.

1.23 Introductory, trial or promotional access to Online Training Modules may be subject to additional terms.

1.24 etrainu may, by exception and at its discretion, provide the Customer with a download of content for use on its own e-learning platform. Where this happens, the Customer acknowledges and agrees that etrainu has no obligation to keep that material up-to-date. The Customer also agrees to comply with any licensing and use restrictions upon which etrainu may condition that use.

Termination

1.25 In addition to any other obligations, upon termination of this agreement, the Customer must immediately:

(a) cease accessing any Online Training Modules; and

(b) return to etrainu any of its confidential Information and Intellectual Property Rights in the Customer’s possession or control.

Support

1.26 Unless etrainu agrees otherwise, it has no obligation to provide any services or products to the Customer in relation to the Online Training Module Access, other than to use reasonable endeavours to provide Online Training Module Access and as set out in the etrainu SLA available at https://etrainu.com/support-services-policy as updated by etrainu from time to time.

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2. White-labelling

2.1 White-labelling is a category of Services provided by etrainu.

2.2 Clause 2 of this Schedule will only apply if identified in a Statement of Work. However, clause 2 of this Schedule only applies to the White-labelling identified in the Statement of Work.

2.3 White-labelling allows the Customer’s Online Training Module Access (pursuant clause 1 of this Schedule) to be by way of a unique custom-branded instance of the learning management site operated by etrainu (Site).

2.4 The Statement of Work will contain any SOW Charges and other specifics for the white-labelled instance of the Site.

2.5 The Statement of Work will specify the initial period in which etrainu will provide White-labelling (Initial Period);

2.6 Unless otherwise agreed in a Statement of Work:

(a) unless either party gives 60 days’ notice before the expiry of the Initial Period, the White-labelling will renew for a period equal to the Initial Period (Renewal Period); and

(b) unless either party gives 60 days’ notice before the expiry of a Renewal Period, the White-labelling will renew for a further Renewal Period (and will continue to do so).

2.7 Any agreed integrations will be listed in Statement of Work.

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3. Online Training Module Development

3.1 Online Training Module Development is a category of Services provided by etrainu.

3.2 Clause 3 of this Schedule will only apply if identified in a Statement of Work. However, clause 3 of this Schedule only applies to the Online Training Module Development identified in the Statement of Work.

3.3 When providing Online Training Module Development, etrainu will develop Developed Online Training Modules for the Customer that can be displayed on a white-labelled version of the learning management site operated by etrainu (Site) (where agreed pursuant to clause 2 of this Schedule) or its own e-learning platform (where agreed pursuant to clause 1.24 of this Schedule).

3.4 The parties agree to the following:

(a) the Customer will provide etrainu with materials (Customer Material) that the Customer desires to be transformed into an online training module (Developed Online Training Module);

(b) etrainu and the Customer will work together to transform the Customer Material into a Developed Online Training Module;

(i) approve the Developed Online Training Module; or

(ii) request that etrainu makes modifications to the Developed Online Training Module.

3.5 The Statement of Work will set out:

(a) a description of the intended Developed Online Training Module;

(b) a list of the Customer Materials that etrainu expects to receive from the Customer;

(d) the target date (if any) for the creation of the Developed Online Training Module; and

(e) any SOW Charges.

Responsibility

3.6 The Customer acknowledges that at all times, it is responsible for ensuring the accuracy of any Developed Online Training Module.

3.7 For as long as the Developed Online Training Module is available on any Site hosted by etrainu, the Customer must immediately notify etrainu if any part of the Developed Online Training Module has become inaccurate or out-of-date.

3.8 Where changes need to be made to a Developed Online Training Module, etrainu will charge for its time making those changes at its then-current rates.

3.9 Where etrainu has reasonable grounds to assume that the Developed Online Training Module is out-of-date or inaccurate, it may, without liability to the Customer, remove that Developed Online Training Module from any Site hosted by etrainu and notify the Customer.

3.10 If the training is developed in a SCORM-based transfer format then on termination of this agreement, etrainu shall on request provide the Customer a copy of the SCORM files that only relate to the training for which the Customer owns the Intellectual Property Rights. This will exclude all generic etrainu training modules. The Customer shall pay etrainu its then-current hourly fee for the provision of the Customer’s files for the Customer if this is required.

3.11 The Customer indemnifies etrainu, its employees, directors, officers, contractors, advisors and agents (etrainu Indemnified Persons) against any liabilities, costs, charges, or expenses, damages and losses and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses suffered or incurred by etrainu Indemnified Persons in connection with any allegation, debt, cause of action, liability, claim, proceeding, suit or demand arising in connection with a Developed Online Training Module created pursuant to Online Training Module Development. For the avoidance of doubt, no cap or exclusion of liability applies to the Customer’s liability under this indemnity.

Intellectual Property Rights

3.12 Unless otherwise agreed, all Developed Online Training Modules must be co-branded so as to feature both the Customer’s and etrainu’s logos and branding.

3.13 Except to the extent that it includes any etrainu Pre-existing IP Rights or Customer Pre-existing IP Rights, the Intellectual Property Rights in all Developed Online Training Modules are owned by the Customer from the date of creation (Developed IP).

3.14 Except to the extent it includes etrainu Pre-existing IP Rights, Developed IP and Intellectual Property Rights in any Customer Material are also deemed to be part of the Customer Pre-Existing IP Rights for the purpose of this agreement.

3.15 The Customer grants a licence to etrainu, or will procure the direct grant to etrainu of, a worldwide, non-exclusive, royalty-free, licence to use, copy and modify the Developed IP and Intellectual Property Rights in any Customer Material for the purpose of etrainu providing services under this document.

3.16 If requested by the Customer, etrainu must provide the Customer with a printed or PDF copy of the final Developed Online Training Module.

3.17 Clauses 3.12 to 3.17 of this Schedule survive termination or expiry of this agreement.

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4. Platform Enhancements

4.1 Platform Enhancements is a category of Services provided by etrainu.

4.2 Clause 4 of this Schedule will only apply if identified in a Statement of Work. However, clause 4 of this Schedule only applies to the Platform Enhancements identified in the Statement of Work.

4.3 When providing Platform Enhancements, etrainu will use reasonable endeavours to enhance the learning management system as more fully described in the agreed scoping document identified in the Statement of Work.

4.4 The Intellectual Property Rights arising from any Platform Enhancements are owned by etrainu from the date of creation.

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5. Site Building

5.1 Site Building is a category of Services provided by etrainu.

5.2 Clause 5 of this Schedule will only apply if identified in a Statement of Work. However, clause 5 of this Schedule only applies to the Site Building identified in the Statement of Work.

5.3 When providing Site Building, etrainu will use reasonable endeavours to develop a website as more fully described in the agreed scoping document identified in the Statement of Work.

5.4 The Statement of Work will specify the initial period in which etrainu will provide Site Building (Initial Period);

5.5 Unless otherwise agreed in a Statement of Work:

(a) unless either party gives 60 days’ notice before the expiry of the Initial Period, the Site Building will renew for a period equal to the Initial Period (Renewal Period); and

(b) unless either party gives 60 days’ notice before the expiry of a Renewal Period, the Site Building will renew for a further Renewal Period (and will continue to do so).

5.6 Unless otherwise agreed, the arising from any Intellectual Property Rights in all Site Building are owned by etrainu from the date of creation.

5.7 The parties acknowledge and agree that etrainu may use a third party service in connection with Site Building. Any such third party service will be identified in the Statement of Work. To the extent permitted by law, the Customer acknowledges and agrees that etrainu will have no liability in connection that third party service.

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6. Technical Build

6.1 Technical Build is a category of Services provided by etrainu.

6.2 Clause 6 of this Schedule will only apply if identified in a Statement of Work. However, clause 6 of this Schedule only applies to the Technical Build identified in the Statement of Work.

6.3 When providing Technical Build, etrainu will use reasonable endeavours to provide the technical build as more fully described in the agreed scoping document identified in the Statement of Work.

6.4 Unless otherwise agreed, the Intellectual Property Rights arising from any Technical Build is owned by etrainu from the date of creation.

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Schedule 2 Content Partner Services

1. Content Partner Services

1.1 Content Partner Services is a category of Services provided by etrainu.

1.2 This Schedule will only apply if identified in a Statement of Work. However, this Schedule only applies to the Content Partner Services identified in the Statement of Work.

1.3 When providing Content Partner Services, the parties agree to the following:

(a) the Customer will provide etrainu with materials (Customer Material) that the Customer desires to be transformed into content that can be displayed on the standard etrainu-branded learning management system (Standard etrainu LMS) as an online training module (CPS Online Training Module);

(b) etrainu and the Customer will work together to transform the Customer Material into content that can be displayed on the Standard etrainu LMS as an CPS Online Training Module;

(i) approve the CPS Online Training Module; or

(ii) request that etrainu makes modifications to the CPS Online Training Module;

(d) once the Customer has approved the CPS Online Training Module, it will be displayed by etrainu on the Standard etrainu LMS where etrainu’s customers may pay etrainu to access that CPS Online Training Module;

(e) etrainu and the Customer will promote and market the availability of the CPS Online Training Module on the Standard etrainu LMS for as long as it is displayed on the Standard etrainu LMS; and

(f) etrainu may agree (as part of a Statement of Work), to pay the Customer commission in relation to etrainu’s supply of paid access for Standard etrainu LMS users in relation to the CPS Online Training Module.

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2. Statement of Work

2.1 The Statement of Work will set out:

(a) a description of the intended CPS Online Training Module;

(b) a list of the Customer Materials that etrainu expects to receive from the Customer;

(d) the target date (if any) for the creation of the CPS Online Training Module;

(e) any SOW Charges; and

(f) any commission that will be paid by etrainu to the Customer in relation to etrainu’s supply of paid access to the CPS Online Training Module.

2.2 Following the Customer’s approval of the CPS Online Training Module, and subject to the rest of this Schedule and the Customer’s compliance with the agreement, etrainu will make the CPS Online Training Module available on the Standard etrainu LMS for paid access by etrainu’s customers.

2.3 The parties will review this arrangement on or about the anniversary of the CPS Online Training Module first being made available on the Standard etrainu LMS. During such review, either party may elect to end the availability of the CPS Online Training Module on the Standard etrainu LMS immediately following the Long Stop Date (see clauses 2.4 and 4.5 of this Schedule 2).

2.4 Once the CPS Online Training Module is made available on the Standard etrainu LMS, the relevant Statement of Work will continue until the date on which that CPS Online Training Module is no longer available on the Standard etrainu LMS and all supply of access to that CPS Online Training Module to etrainu’s customers has ended (Long Stop Date).

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3. Responsibility

3.1 The Customer acknowledges that at all times, it is responsible for ensuring the accuracy of any CPS Online Training Module.

3.2 For as long as the CPS Online Training Module is available on the Standard etrainu LMS, the Customer must immediately notify etrainu if any part of the CPS Online Training Module has become inaccurate or out-of-date.

3.3 Where changes need to be made to a CPS Online Training Module, etrainu will charge for its time making those changes at its then-current rates.

3.4 Where etrainu has reasonable grounds to assume that the CPS Online Training Module is out-of-date or inaccurate, it may, without liability to the Customer, remove that CPS Online Training Module from the Standard etrainu LMS and notify the Customer.

3.5 The Customer indemnifies etrainu, its employees, directors, officers, contractors, advisors and agents (etrainu Indemnified Persons) against any liabilities, costs, charges, or expenses, damages and losses and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses suffered or incurred by etrainu Indemnified Persons in connection with any allegation, debt, cause of action, liability, claim, proceeding, suit or demand arising in connection with an CPS Online Training Module created pursuant to Content Partner Services. For the avoidance of doubt, no cap or exclusion of liability applies to the Customer’s liability under this indemnity.

3.6 The parties may, from time-to-time, agree a recommended retail price for etrainu’s supply of access to the CPS Online Training Module on the Standard etrainu LMS. However, the price at which etrainu supplies access to the CPS Online Training Module on the Standard etrainu LMS is solely set by etrainu in its discretion.

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4. Intellectual Property Rights

4.1 Except to the extent that it includes any Customer Pre-existing IP, the Intellectual Property Rights in all CPS Online Training Modules are owned by etrainu from the date of creation (CPS Developed IP).

4.2 If any of the Customer's personnel is the author of any copyright works created during the course of creating an CPS Online Training Module, the Customer warrants that the relevant member of the Customer's personnel consents to etrainu (and etrainu’s successors, assignees and licensees) engaging in any act or omission that would otherwise infringe that member of the Customer's personnel's Moral Rights including not attributing authorship to that member of the Customer's personnel.

4.3 The Customer must on request by etrainu obtain from the Customer's personnel written, unconditional and irrevocable consent to any act or omission that may infringe their Moral Rights in the CPS Online Training Module for the benefit of etrainu, its successors, assignees and licensees in a form reasonably acceptable to etrainu and provide copies of such consents within 7 days of etrainu's request.

4.4 Except to the extent it includes etrainu Pre-existing IP Rights, Intellectual Property Rights in any Customer Material is deemed to be part of the Customer Pre-Existing IP Rights for the purpose of this agreement.

4.5 The Customer grants a licence to etrainu, or will procure the direct grant to etrainu of, a worldwide, non-exclusive, royalty-free, irrevocable licence to use, copy and modify the Intellectual Property Rights in the Customer Material for the purpose of etrainu providing services under this document and/or supplying etrainu’s customers with access to the relevant CPS Online Training Modules as contemplated by clause 2.2 of this Schedule 2. The licence in this clause 4.5 of this Schedule 2 will continue until the later of:

(a) termination of this Statement of Work; and

(b) the Long Stop Date.

4.6 If requested by the Customer, etrainu must provide the Customer with a printed or PDF copy of the final CPS Online Training Module.

4.7 Unless etrainu agrees in advance:

(a) until the Long Stop Date:

(i) all CPS Online Training Modules developed under this Schedule must be co-branded so as to feature both the Customer’s and etrainu’s logos and branding;

(ii) nothing in this Schedule requires etrainu to provide the Customer with a copy of the SCORM files that relate to the CPS Online Training Module; and

(iii) the Customer is not permitted to display, and must not allow any third party to display, the CPS Online Training Module on its own or a third party e-learning platform or similar; and

(b) following the Long Stop Date:

(i) the Customer grants a licence to etrainu, or will procure the direct grant to etrainu of, a worldwide, non-exclusive, royalty-free, irrevocable, perpetual licence to use, copy and modify the Intellectual Property Rights in the Customer Material in the CPS Online Training Module developed under this Schedule 2 for the purpose of use, modification or distribution of that CPS Online Training Module by etrainu provided that such CPS Online Training Module does not contain any of the Customer’s logos, branding or affiliation (to be removed at etrainu’s cost); and

(ii) etrainu grants a licence to the Customer, or will procure the direct grant to the Customer of, a worldwide, non-exclusive, royalty-free, irrevocable, perpetual licence to use, copy and modify the Intellectual Property Rights in CPS Developed IP and etrainu Pre-existing IP in the CPS Online Training Module developed under this Schedule 2 for the purpose of use, modification or distribution of that CPS Online Training Module by the Customer provided that such CPS Online Training Module does not contain any of etrainu’s logos, branding or affiliation (to be removed at the Customer’s cost).

4.8 No commission is payable by etrainu to the Customer following the Long Stop Date.

4.9 This clause 4 of Schedule 2 survives termination or expiry of this agreement.

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Schedule 3 Resale Rights

1. Resale Rights

1.1 Resale Rights are a category of Services provided by etrainu.

1.2 This Schedule will only apply if identified in a Statement of Work. However, this Schedule only applies to the Resale Rights identified in the Statement of Work.

1.3 Resale Rights entitle the Customer to resell access to certain etrainu products and services that are identified as Resold Products in the Statement of Work to the customers of the Customer (Resold Customers).

1.4 The Customer must enter into a written contract with each Resold Customer in relation to the supply of the Resold Products (Resold Customer Contract).

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2. Appointment

2.1 etrainu appoints the Customer as a non-exclusive reseller of Resold Products for the Resale Term set out in the Statement of Work, subject to the terms of this agreement.

2.2 Unless otherwise agreed, the Customer acknowledges that etrainu or other resellers appointed by etrainu may also market and supply the Resold Products to Resold Customers and other customers of the Customer during the Resale Term and after, including for the purpose of resale.

2.3 The Customer supplies the Resold Products to the Resold Customer as principal and not as agent of etrainu.

2.4 The Customer must order Resold Products from etrainu in accordance with this Schedule to meet the Customer’s obligations to a Resold Customer under a Resold Customer Contract.

2.5 The Customer’s obligations under this agreement are independent of any obligation that the Resold Customer owes to the Customer under a Resold Customer Contract. In particular, the Customer must pay all fees under this agreement regardless of whether the Resold Customer pays the Customer any amounts owing under a Resold Customer Contract.

2.6 The fees the Customer charges the Resold Customer for the Resold Products under a Resold Customer Contract are solely set by the Customer in its discretion, except if etrainu sets a maximum resale price, in which case the Customer cannot charge higher than the maximum resale price but may charge that price or lower.

2.7 Subject to the rest of this Schedule, the Customer acknowledges and agrees that the Customer is solely responsible for determining and establishing all systems and marketing plans suitable for selling goods and services (including the Resold Products), conducting business and promoting the Resold Products in connection with this agreement.

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3. Customer ordering Resold Products

3.1 The Customer may request Resold Products from time to time by giving etrainu an order in the format required by etrainu from time-to-time (Order).

3.2 If etrainu notifies the Customer that it accepts the Order then etrainu sells the Resold Products requested in the Order to the Customer and the Customer buys those Resold Products from etrainu.

3.3 For clarity, etrainu may choose not to accept an Order. etrainu will not unreasonably refuse to accept Orders.

3.4 Purchases of Resold Products by the Customer from etrainu are for resale of access only and do not transfer ownership of Intellectual Property Rights, and such products may not be used by the Customer.

3.5 Each Order must set out the information required by etrainu from time to time.

3.6 The SOW Fees payable by the Customer for the Resold Products are specified in the corresponding Statement of Work.

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4. Sale and promotion of the Resold Products by the Customer

4.1 The Customer must not do or omit to do anything that adversely affects the reputation of etrainu or the Resold Products, including making disparaging statements about etrainu or the Resold Products.

4.2 The Customer must ensure that each Resold Customer Contract contains the following Mandatory Requirements:

(a) rights in favour of the Customer that are no less than those required by etrainu of a customer under this agreement (in so far as those rights relate to the Resold Products);

(b) restrictions and protections in favour of the Customer that are no less restrictive and protective than those required by etrainu of a customer under this agreement (in so far as those restrictions and protections relate to the Resold Products);

(c) an obligation for the Resold Customer to provide the Customer and etrainu with the information, permissions, licences and consents required by etrainu of a customer under this agreement (in so far as those items relate to the Resold Products).

4.3 The Customer must hold the benefit of the Mandatory Requirements on trust for etrainu.

4.4 The Customer must immediately inform etrainu if the Customer becomes aware of any breach of a Resold Customer Contract that in any way relates to the Mandatory Requirements or the Resold Products.

4.5 The Customer must follow the reasonable request of etrainu (including in relation to suspending or terminating the Resold Customer’s access to the Resold Products or commencing proceedings against the Resold Customer) in relation to the Customer enforcing the Customer’s rights in a Resold Customer Contract against the Resold Customer in relation to the Resold Products.

4.6 The Customer will, if requested by etrainu, do all things required to enable a claim to be brought (in the Customer’s name on behalf of etrainu) against a Resold Customer to enforce a breach of the Mandatory Requirements in a Resold Customer Contract against the Resold Customer and will ensure that etrainu obtains the benefit of any such claim.

4.7 Except where etrainu makes commitments to the Customer in this Schedule, and to the extent permitted by law, etrainu is not responsible for and will have no liability to the Customer in relation to:

(a) any Resold Customer Contract; or

(b) the Customer’s resale of Resold Products to Resold Customers.

4.8 To the extent permitted by law, the Customer must not make any representation or give any warranty relating to or in connection with the Resold Products, except as specifically authorised by etrainu.

4.9 The Customer must comply with any reasonable direction given by etrainu relating to the promotion and marketing of the Resold Products.

4.10 etrainu may, from time to time, require the Customer (and any or all relevant staff) to complete refresher or other training to promote the Resold Products.

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5. Additional termination right

5.1 In addition to any other termination rights, etrainu may terminate the Resale Rights at any time by giving 1 month’s written notice to the Customer.

5.2 On termination of this agreement the Customer must return all Confidential Information, etrainu Intellectual Property Rights or other property of etrainu in the Customer’s care, custody or control to etrainu.

5.3 Except in the event of termination of this agreement or Schedule for the Customer’s default, in so far as the termination relates to this Schedule, the parties agree that the termination is only intended to terminate the Customer’s appointment as reseller and its ability to place Orders of the Resold Products with etrainu. etrainu will continue to enable the supply of Resold Products to Resold Customers where the corresponding Order was placed before the termination took effect) and this agreement will be deemed to continue for the purpose of giving effect to this clause, for the remainder of the relevant Resold Customer’s licence period (and there will be no extensions or renewals), and the Customer must continue to pay the applicable SOW Fees for those Resold Products.

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6. Claims

6.1 The Customer must immediately notify etrainu if any third party (including Resold Customer) makes or threatens to make a complaint or claim in connection with any of the Resold Products.

6.2 The Customer must not resolve or settle any complaint or claim in connection with any of the Resold Products that may result in etrainu incurring any liability to any person without etrainu’s prior consent.

6.3 Subject to clause 6.2 of this Schedule 3, the Customer must promptly deal with all complaints or claims from its customers in respect of the Resold Products.

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7. Indemnity

7.1 The Customer is liable for, and indemnifies etrainu from and against, all loss or damage (including legal costs) incurred or suffered by etrainu however caused in connection with:

(a) any breach of this Schedule 3 by the Customer; and/or

(b) any claim brought by Resold Customer or other third party against etrainu in connection with the Resold Products.

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