LEGAL
Terms and Conditions
Online Master Services Terms
Terms and conditions
Background
A. etrainu is in the business of providing the Services.
B. The Customer wishes to obtain and etrainu wishes to provide the Services on the terms set out in this agreement.
Agreed Terms
1. Definitions and interpretation
1.1 Capitalised terms or expressions used in this agreement have the meanings set out in this clause.
APP: means an Australian Privacy Principle as defined in the Privacy Act.
APP Entity: has the meaning given in the Privacy Act.
Applicable Laws: all applicable laws, statutes, regulations and codes from time to time in force.
Business Day: a day on which banks are open for business in Brisbane, other than a Saturday, Sunday or public holiday in that city.
Business Hours: the period from 9.00 am to 5.00 pm on any Business Day.
CPI: means the All Groups Consumer Price Index for the Weighted Average of Eight Capital Cities of Australia or if the Australian Statistician ceases to publish that index, the index published by the Australian Bureau of Statistics (or any successor of or replacement for it) which most closely approximates to the applicable index.
Commencement Date: the date when the Statement of Work has been signed by all the parties.
Customer: means the party identified as such in the Statement of Work.
Customer Pre-existing IP Rights: Intellectual Property Rights in all material made available by Customer in connection with this agreement that either:
1.1(a) existed prior to this agreement; or
1.1(b) were developed independently of this agreement.
Control: the definition given to that term in section 50AA of the Corporations Act, and the expression change of Control shall be construed accordingly.
Corporations Act: the Corporations Act 2001 (Cth).
Customer's Representative: has the meaning given in clause 6.2(a).
etrainu: means etrainu Pty Ltd ABN 20 117 967 030 of Level 10, 60 Edward St, Brisbane QLD 4000.
etrainu Pre-existing IP Rights: Intellectual Property Rights in all material owned by etrainu that is made available to the Customer in connection with this agreement and that either:
1.1(a) existed prior to this agreement; or
1.1(b) were developed independently of this agreement,
and also includes any improvements and/or modifications made to those Intellectual Property Rights.
etrainu's Representative: has the meaning given in clause 5.3.
GST: goods and services tax chargeable under A New Tax System (Goods and Services Tax) Act 1999 (Cth).
GST Law: has the same meaning as "GST Law" in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Interest Rate: the most recent cash rate announced and published by the Reserve Bank of Australia.
Intellectual Property Rights: patents, rights to inventions, copyright and related rights, trademarks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs and unregistered designs, circuit layout designs, rights to use, and protect the confidentiality of, confidential information (including know-how, trade secrets, and technical data), technology and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future anywhere in the world.
Moral Rights: the rights conferred by Part IX of the Copyright Act 1968 (Cth) and including any similar rights existing or that may come to exist anywhere in the world.
Personal Information: has the meaning given in the Privacy Act.
Pre-existing IP Rights: means the Customer Pre-existing IP Rights or the etrainu Pre-existing IP Rights, as the context requires.
Privacy Act: the Privacy Act 1988 (Cth) as amended from time to time.
Related Body Corporate: has the meaning given in s50 of the Corporations Act.
Sensitive Information: has the meaning given in the Privacy Act.
Services: the services described in the Statement of Work.
SOW Charges: the sums payable for the Services as set out in the Statement of Work.
Statement of Work: a detailed plan describing the Services to be provided by etrainu, the application of these terms, the relevant Schedule(s), the timetable for their performance (if any) and related matters that has been agreed in writing by the parties.
Term: means the period from the Commencement Date until termination of this agreement in accordance with its terms.
Users: means the users of the Services.
1.2 In this agreement the following rules of interpretation apply, unless the contrary intention appears or context otherwise requires:
1.2(a) headings and subheadings are for convenience only and do not affect the interpretation of this agreement;
1.2(b) references to clauses and Schedules, are references to the clauses of, and the Schedules to, this agreement;
1.2(c) references to parties are references to the parties to this agreement;
1.2(d) references to a party to any agreement or document include that party's permitted assignees and successors, including executors and administrators and legal representatives;
1.2(e) words denoting the singular include the plural and words denoting the plural include the singular;
1.2(f) words denoting any gender include all genders;
1.2(g) the word "person" includes any individual, corporation or other body corporate, partnership, joint venture, trust, association and any Government agency;
1.2(h) a reference to any agreement or document (including this agreement) includes any amendments to or replacements of that document;
1.2(i) a reference to a law includes:
1.2(i)(i) legislation, regulations and other instruments made under legislation and any consolidations, amendments, re-enactments or replacements of them;
1.2(i)(ii) any constitutional provision, treaty or decree;
1.2(i)(iii) any judgment;
1.2(i)(iv) any rule or principle of common law or equity,
and is a reference to that law as amended, consolidated, re-enacted, replaced or applied to new or different facts;
1.2(j) no provision of this agreement will be construed adversely to a party because that party was responsible for the preparation of that provision or this agreement;
1.2(k) if a period of time begins on a given day or the day of an act or event, it is to be calculated exclusive of that day;
1.2(l) a reference to time is a reference to Brisbane time unless otherwise specified;
1.2(m) a reference to a day is to be interpreted as the period of time commencing at midnight and ending 24 hours later;
1.2(n) if any act is required to be performed under this agreement by a party on or by a specified day and the act is performed after 5.00 pm on that day, the act is deemed to be performed on the next day;
1.2(o) if any act is required to be performed under this agreement on or by a specified day and that day is not a Business Day, the act must be performed on or by the next Business Day;
1.2(p) a reference to an amount of dollars, Australian dollars, $ or A$ is a reference to the lawful currency of the Commonwealth of Australia, unless the amount is specifically denominated in another currency;
1.2(q) specifying anything in this agreement after the terms "include", "including", "includes", "for example", "such as" or any similar expression does not limit the sense of the words, description, definition, phrase or term preceding those terms unless there is express wording to the contrary;
1.2(r) this agreement includes all Schedules to it;
1.2(s) a reference to writing or written includes email but not fax;
1.2(t) references to a document in agreed form are to that document in the form agreed by the parties and initialled by them or on their behalf for identification;
1.2(u) where a word or phrase is defined, other parts of speech and grammatical forms of that word or phrase have corresponding meanings; and
1.2(v) an agreement other than this agreement includes a deed, undertaking or legally enforceable agreement or understanding whether in writing or not.
2. Commencement and Term
2.1 This agreement starts on the Commencement Date and, unless terminated earlier in accordance with clause 13, ends on completion of the Services under the Statement of Work.
3. Schedules
3.1 Further terms applicable to specific Services are set out in the Schedules to this agreement.
3.2 The terms of a Schedule only apply to the corresponding Service.
4. Statements of Work
4.1 etrainu will provide the Services from the date specified in the Statement of Work.
4.2 Once the Statement of Work has been agreed and signed, no amendment will be made to it except with the prior written agreement of both parties.
4.3 The Statement of Work together with these terms, forms a separate contract.
4.4 If there is an inconsistency between the documents that comprise this agreement, the following order sets out which document prevails to the extent of the inconsistency:
4.4(a) the Schedules (which prevail to the greatest extent, but only in relation to the relevant Service);
4.4(b) the terms set out in this document other than the Schedules; and
4.4(c) the Statement of Work (except to the extent the Statement of Work expressly identifies the inconsistent provision of the Schedule or this document as not prevailing).
5. etrainu’s obligations
5.1 etrainu must use reasonable endeavours to provide the Services to the Customer, in accordance with the Statement of Work in all material respects.
5.2 etrainu must use reasonable endeavours to meet any performance dates specified in the Statement of Work but any such dates will be estimates only and time for performance by etrainu will not be of the essence of this agreement.
5.3 etrainu must identify in the Statement of Work a manager who is appointed in respect of the relevant Services to be performed (etrainu's Representative).
6. Customer's obligations
6.1 The Customer must:
6.1(a) comply with all Applicable Laws, including health and safety laws, applicable to its receipt and use of the Services;
6.1(b) provide reasonable assistance to etrainu in all matters relating to the Services; and
6.1(c) provide to etrainu in a timely manner all documents, information, items and materials in any form (whether owned by the Customer or a third party) required under the Statement of Work or otherwise reasonably required by etrainu in connection with the Services and ensure that they are accurate and complete.
6.2 The Customer:
6.2(a) must identify in the Statement of Work a manager who is appointed in respect of the relevant Services to be performed (Customer's Representative); and
6.2(b) warrants that the Customer's Representative has authority to contractually bind the Customer on all matters relating to the relevant Services under the Statement of Work.
6.3 Before the date on which the Services are due to start, the Customer must obtain and maintain all necessary licences and consents and comply with all relevant legislation as required to enable etrainu to provide those Services, including in relation to the use of all Customer Pre-Existing IP Rights.
6.4 The Customer must comply with any additional responsibilities as set out in the Statement of Work.
6.5 If etrainu's performance of its obligations under this agreement is prevented or delayed by any act or omission of the Customer, its agents, contractors, subcontractors, consultants or employees then, without prejudice to any other right or remedy etrainu may have:
6.5(a) etrainu will be allowed an extension of time to perform its obligations equal to the delay to the extent caused by the Customer and etrainu will be paid for any additional time at its then-current rates; and
6.5(b) etrainu will not be responsible for any costs or losses the Customer sustains or incurs to the extent arising directly or indirectly from etrainu’s failure or delay to provide the Services; and
6.5(c) etrainu may, acting reasonably, reschedule and reprice the relevant Services.
6.6 The Customer is responsible for all use of the Services, and must ensure that no person uses the Services:
6.6(a) in breach of this agreement;
6.6(b) except as otherwise agreed in the corresponding Statement of Work, for any purpose other than the Customer’s internal business;
6.6(c) in a manner that breaks any law or infringes any person’s rights (including, but not limited to, Intellectual Property Rights);
6.6(d) in any way that damages, interferes with or interrupts the supply of the Services;
6.6(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
6.6(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.
6.7 Additionally, the Customer must not:
6.7(a) except as otherwise agreed in the corresponding Statement of Work, permit any third party to access the Services;
6.7(b) except as otherwise agreed in a Statement of Work, lease, sublicence, resell or otherwise distribute access to the Services;
6.7(c) create derivative works based on any Services ;
6.7(d) copy, frame or mirror any part or content of any Services;
6.7(e) reverse engineer any Services; or
6.7(f) access any Services in order to:
6.7(f)(i) build a competitive product or service, or
6.7(f)(ii) copy any features, functions or graphics of any Services,
6.7(g) and must ensure that no person does any of the acts described in clauses 6.7(a) to 6.7(f).
6.8 The Customer is responsible for the acts and omissions of any user authorised by the Customer or accessing the Services using the Customer’s credentials or systems, except to the extent caused or contributed to by the negligence of etrainu or etrainu’s breach of contract.
6.9 The Customer acknowledges and agrees that it and each User that accesses the Services may be required to accept the Acceptable Use Policy available at https://etrainu.com/acceptable-use-policy.
6.10 Subject to clause 12.4, the Customer acknowledges and agrees that etrainu is not responsible for the Customer’s use of the Services, or any actions it takes or conclusions it reaches based on its use of the Services.
6.11 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.
6.12 The Customer represents and warrants to etrainu that:
6.12(a) all information given to etrainu in relation to this agreement is correct, complete and not misleading; and
6.12(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.
7. Non-solicitation
Neither party will, without the prior written consent of the other party, at any time from the date on which any Services commence to the expiry of 12 months after the completion of such Services, canvass, solicit, interfere with or entice away, or attempt to canvass, solicit, interfere with or entice away, from the other party, or employ or engage or attempt to employ or engage, any person who is, or has been, engaged as an employee, consultant, contractor or subcontractor of the other party. A party will not be in breach of this clause if it engages or employs a person as a result of that person responding to a published job advertisement that was not specifically targeted at that person.
8. Charges and payment
8.1 In consideration of the provision of the Services by etrainu, the Customer must pay the SOW Charges.
8.2 etrainu will invoice the Customer for the SOW Charges at the intervals specified in the Statement of Work. If no intervals are specified, etrainu will invoice the Customer at the end of each month for Services performed during that month.
8.3 The Customer must pay each invoice submitted to it by etrainu within 14 days of receipt to a bank account nominated in writing by etrainu from time to time.
8.4 Without prejudice to any other right or remedy etrainu may have:
8.4(a) if any sum due for payment under this agreement is not paid on the due date, the Customer must pay interest on the amount unpaid at the Interest Rate;
8.4(b) interest payable under clause 8.4(a) accrues on a day-to-day basis from the due date up to and including the date of actual payment;
8.4(c) interest payable under clause 8.4(a) may be capitalised by etrainu on a monthly basis; and
8.4(d) the Customer must reimburse etrainu for all reasonable costs and expenses incurred by etrainu in recovering any overdue amount, including third party debt recovery fees, bank fees and legal costs; and
8.4(e) etrainu may suspend part or all of the Services until payment of an overdue and undisputed invoice has been made in full provided that etrainu has given at least 5 Business Days’ written notice of its intention to suspend.
8.5 All sums payable to etrainu under this agreement:
8.5(a) are exclusive of GST, and the Customer must in addition pay an amount equal to any GST chargeable on those sums on delivery of a GST invoice; and
8.5(b) must be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
8.6 The SOW Charges may be increased (at etrainu’s election) on each anniversary of the Commencement Date to an amount calculated by multiplication of the then current SOW Charges by a fraction, the denominator of which is the CPI current one year previously and the numerator of which is the then-current CPI.
8.7 Without limiting clause 8.6, where a Schedule or the Statement of Work provides for Renewal Periods, at least 90 days prior to the start of a Renewal Period, etrainu may submit revised SOW Charges pricing that will apply during that Renewal Period.
8.8 If the Customer’s current pricing reflects a discount based on it being a Member of the National Disability Service (NDS Member Discount), and the Customer ceases to be a Member of the National Disability Service, it must immediately notify etrainu. The National Disability Service may also notify etrainu that the Customer has ceased to be a Member of the National Disability Service. From the date that the Customer ceases to be a Member of the National Disability Service, pricing may be automatically adjusted to remove the NDS Discount and etrainu may issue interim invoices for any period in which the Customer has been undercharged.
8.9 A party may set off any amount payable by it to the other party against any amount payable by the other party to it under this agreement.
9. Intellectual Property Rights
9.1 Each party acknowledges that all Pre-existing IP Rights remain the sole property of the owner. Ownership of Pre-existing IP Rights remains unchanged by this agreement, other than as expressly set out in this agreement.
9.2 The Customer grants etrainu a worldwide, perpetual, irrevocable non-exclusive, royalty-free licence to use the Customer Pre-existing IP Rights provided or made available by it for the sole purpose of etrainu performing the Services and otherwise exercising its rights under this agreement. This licence is capable of being sublicensed.
9.3 etrainu grants the Customer a non-exclusive, royalty-free, non-transferable licence for the duration of the Statement of Work to use the etrainu Pre-existing IP Rights for the sole purpose of the Customer enjoying the Services.
9.4 etrainu:
9.4(a) warrants that the receipt, use of the etrainu Pre-existing IP Rights by the Customer in accordance with this agreement will not infringe the rights, including any Intellectual Property Rights, of any third party;
9.4(b) must keep the Customer indemnified in full 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 the Customer arising out of or in connection with any claim brought against the Customer by a third party for actual or alleged infringement of that third party's Intellectual Property Rights arising from use of the etrainu Pre-existing IP Rights in accordance with this agreement.
9.5 The Customer:
9.5(a) warrants that the receipt and use in the performance of this agreement by etrainu, its agents, subcontractors or consultants of the Customer Pre-existing IP Rights in accordance with this agreement will not infringe the rights, including any Intellectual Property Rights, of any third party; and
9.5(b) must keep etrainu indemnified in full 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 arising out of or in connection with any claim brought against etrainu by a third party for actual or alleged infringement of that third party's Intellectual Property Rights arising from use in the performance of this agreement of the Customer Pre-existing IP Rights in accordance with this agreement.
9.6 If either party (Indemnifying Party) is required to indemnify the other party (Indemnified Party) under this clause 9, the Indemnified Party must:
9.6(a) notify the Indemnifying Party in writing of any claim against it in respect of which it wishes to rely on the indemnity at clause 9.4(b) or 9.5(b) (as applicable) (IPRs Claim);
9.6(b) allow the Indemnifying Party, at its own cost, to conduct all negotiations and proceedings and to settle the IPRs Claim, always provided that the Indemnifying Party obtains the Indemnified Party's prior approval of any settlement terms, such approval not to be unreasonably withheld;
9.6(c) provide the Indemnifying Party with such reasonable assistance regarding the IPRs Claim as is required by the Indemnifying Party, subject to reimbursement by the Indemnifying Party of the Indemnified Party's costs so incurred; and
9.6(d) not, without prior consultation with the Indemnifying Party, make any admission relating to the IPRs Claim or attempt to settle it, provided that the Indemnifying Party considers and defends any IPRs Claim diligently, using competent counsel and in such a way as not to bring the reputation of the Indemnified Party into disrepute.
10. Privacy
10.1 For the purposes of this agreement, each party agrees it is an APP Entity and complies with and will continue to comply with the Privacy Act and all other applicable privacy laws.
10.2 If etrainu collects, holds, uses or discloses Personal Information in the course of or relating to this agreement, etrainu must:
10.2(a) handle all Personal Information in accordance with etrainu's privacy policy; and
10.2(b) only use Personal Information for the purpose of performing its obligations under this agreement.
10.3 The Customer warrants that it:
10.3(a) will not provide any Sensitive Information to etrainu unless that information is necessary for etrainu to perform its obligations under the agreement and then only with etrainu's specific written consent; and
10.3(b) has:
10.3(b)(i) made all necessary notifications required by APP 5, on behalf of itself and etrainu to; and
10.3(b)(ii) obtained all necessary consents required by APP 6 from,
the individuals whose Personal Information it is disclosing to etrainu in the course of this agreement to enable etrainu to lawfully use the Personal Information and perform its obligations in accordance with this agreement.
10.4 Each party will ensure that its employees, contractors or advisors who are required to handle Personal Information in the course of this agreement are made aware of the obligations of that party in this clause 10.
10.5 Each party is responsible for the acts and omissions of its respective personnel (including subcontractors and advisors) as if they were that party’s own acts and omissions, and a breach by any such personnel is a breach by that party.
10.6 The Customer:
10.6(a) acknowledges that etrainu is reliant on the Customer for direction as to the extent to which etrainu is entitled to use Personal Information disclosed to it in the course of and for the purpose of this agreement; and
10.6(b) indemnifies etrainu for any claim brought by any third party in connection with any act or omission by etrainu in relation to a third party’s Personal Information to the extent that such act or omission resulted directly from the Customer’s instructions or the Customer’s breach of this clause 10.
11. Confidentiality
11.1 Each party (Recipient) must keep secret and confidential and not disclose any information relating to another party or its business (which is or has been disclosed to the Recipient by the other party, the Recipient’s representatives or advisers) or the terms of this agreement, except:
11.1(a) where the information is in the public domain as at the date of this agreement (or subsequently becomes in the public domain other than by breach of any obligation of confidentiality binding on the Recipient);
11.1(b) if the Recipient is required to disclose the information by applicable law or the rules of any recognised securities exchange, 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;
11.1(c) where the disclosure is permitted under this agreement;
11.1(d) if disclosure is made to its officers, employees and professional advisers (and, in the case etrainu as Recipient, to etrainu’s subcontractors) to the extent necessary to enable the Recipient to properly perform its obligations under this agreement, in which case the Recipient must ensure that such persons keep the information secret and confidential and do not disclose the information to any other person;
11.1(e) where the disclosure is required for use in legal proceedings regarding this agreement; or
11.1(f) if the party to whom the information relates has consented in writing before the disclosure.
11.2 Each party may use the other party’s name and logo during the Term solely to identify and promote the existence of the commercial relationship between the parties.
11.3 Each Recipient must ensure that its directors, officers, employees, agents, representatives and Related Bodies Corporate comply in all respects with the Recipient's obligations under this clause 11.
11.4 This clause 11 survives termination or expiry of this agreement.
11.5 The obligations of confidentiality in this clause 11 are not affected by the expiry or termination of this agreement.
12. Limitation of remedies, liability and disclaimers
12.1 Nothing in this agreement limits or excludes a party’s liability:
12.1(a) for death or personal injury caused by its negligence or wilful misconduct or that of its employees, as applicable;
12.1(b) for fraud or fraudulent misrepresentation by it or its employees, as applicable;
12.1(c) where liability arises under an indemnity; or
12.1(d) where liability cannot be limited or excluded by Applicable Laws.
12.2 Subject to clauses 12.1 and 12.4, each party excludes any liability to the other party, whether in contract, tort (including negligence) or otherwise, for any special, indirect or consequential loss arising under or in connection with this agreement, including any:
12.2(a) loss of profits;
12.2(b) loss of sales or business;
12.2(c) loss of production;
12.2(d) loss of agreements or contracts;
12.2(e) loss of business opportunity;
12.2(f) loss of anticipated savings;
12.2(g) loss of or damage to goodwill;
12.2(h) loss of reputation; or
12.2(i) loss of use or corruption of software, data or information.
12.3 Subject to clauses 12.1, 12.2 and 12.4, each party’s aggregate liability to the other for any loss or damage or injury (of any nature) in respect of events (including acts or omissions) in any calendar year, arising out of or in connection with this agreement or any collateral contract, whether in contract or tort (including negligence) or otherwise, will in no circumstances exceed 100% of the total charges payable by the Customer to etrainu under this agreement in that calendar year.
12.4 Subject to clause 12.5, nothing in this agreement 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 etrainu 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 goods and/or services.
12.5 If etrainu is liable to the Customer 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, etrainu’s total liability to the Customer for that failure is limited to, at etrainu’s option, in the case of a supply of goods, etrainu 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, etrainu supplying the services again or paying the cost of having the services supplied again.
12.6 Subject to clause 12.4, and to the extent permitted by law:
12.6(a) etrainu does not guarantee that the Services will always be available, uninterrupted or be error-free; and
12.6(b) the Services are provided on an "as is" and "as available" basis, and (except as set out in this agreement) etrainu excludes all express, statutory and implied conditions, guarantees and warranties in relation to any Services other than the warranties expressly set out in this agreement.
12.7 Among other things, the operation and availability of the systems used for accessing the Services, including computer networks and the internet, can be unpredictable and may from time to time interfere with or prevent access to the Services. Subject to clause 12.4, etrainu is not responsible or liable for any of these failures.
12.8 Unless etrainu agrees otherwise, it has no obligation to provide any support services to the Customer in relation to the Services, other than to use reasonable endeavours to provide Services and as set out in the etrainu SLA available at https://etrainu.com/support-services-policy as updated by etrainu from time to time.
12.9 etrainu may modify, replace or remove any library, course, content or material made available as part of the Services, provided that where the change materially reduces the scope or quality of the Services, etrainu will provide a replacement of substantially equivalent or better quality. If the Customer believes that the replacement material is not substantially equivalent or better quality then it must raise its concern with etrainu in writing within 30 days of the change and etrainu will review and discuss with the Customer.
13. Termination
13.1 Without affecting any other right or remedy available to it, a party may terminate this agreement with immediate effect by giving written notice to the other party if:
13.1(a) the other party commits a material breach of any term of this agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified in writing to do so;
13.1(b) the other party:
13.1(b)(i) is insolvent as defined by section 95A of the Corporations Act as disclosed in its accounts or otherwise;
13.1(b)(ii) states that it is insolvent;
13.1(b)(iii) is presumed to be insolvent under an Applicable Laws (including under section 459C(2) or section 585 of the Corporations Act); or
13.1(b)(iv) otherwise is, or states that it is, unable to pay all its debts as and when they become due and payable;
13.1(c) a liquidator or provisional liquidator is appointed to the other party;
13.1(d) an administrator is appointed to the other party under section 436A, section 436B or section 436C of the Corporations Act;
13.1(e) a controller (as defined in section 9 of the Corporations Act) is appointed to the other party or any of its assets;
13.1(f) a receiver is appointed to the other party or any of its assets;
13.1(g) an application is made to a court for an order, or an order is made, that the other party may be wound up, declared bankrupt or that a provisional liquidator, receiver or receiver and manager be appointed to that other party, and that application is not withdrawn, struck out or dismissed within 15 Business Days of it being made;
13.1(h) the other party enters into an arrangement or composition with one or more of its creditors, or an assignment for the benefit of one or more of its creditors, in each case other than to carry out a reconstruction or amalgamation while solvent;
13.1(i) the other party proposes a winding-up, dissolution or reorganisation, moratorium, deed of company arrangement or other administration involving one or more of its creditors;
13.1(j) the other party it is taken to have failed to comply with a statutory demand under section 459F(1) of the Corporations Act;
13.1(k) a notice is issued to the other party under section 601AA or section 601AB of the Corporations Act, and not withdrawn or dismissed within 15 Business Days;
13.1(l) a writ of execution, which is not dismissed within 15 Business Days;
13.1(m) the other party ceases to carry on business or threatens to do so, other than in accordance with the terms of this agreement; or
13.1(n) any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clauses 13.1(b) to 13.1(m) (inclusive).
13.2 Without affecting any other right or remedy available to it, etrainu may terminate this agreement with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under this agreement on the due date for payment and remains in default not less than 14 days after being notified in writing to make such payment.
13.3 On termination of this agreement:
13.3(a) the Customer must return all Confidential Information, Intellectual Property Rights of etrainu and other property of etrainu in the Customer’s care, custody or control to etrainu;
13.3(b) the Customer must immediately pay to etrainu all of etrainu's outstanding unpaid invoices and interest and, in respect of the Services supplied but for which no invoice has been submitted, etrainu may submit an invoice, which shall be payable immediately on receipt; and
13.3(c) the following clauses will continue in force: 1 (Interpretation), 7 (Non-solicitation), 9 (Intellectual property rights), 10 (Privacy), 11 (Confidentiality), 12 (Limitation of remedies and liability), 13 (Termination), 17 (Waiver), 19 (Severability), 24 (Multi-tiered dispute resolution procedure) and 25 (Governing law and jurisdiction) together with any other term which by its nature is intended to do so.
13.4 Termination or expiry of this agreement will not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination or expiry.
14. Force Majeure
14.1 Neither party is in breach of this agreement or is liable to the other party for any loss incurred by that other party as a direct result of a party (Affected Party) failing or being prevented, hindered or delayed in the performance of its obligations under this agreement (other than payment of fees) where such prevention, hindrance or delay results from events, circumstances or causes beyond the Affected Party's control (Force Majeure Event).
14.2 If a Force Majeure Event occurs, the Affected Party must notify the other party (Non-affected Party) in writing as soon as practicable and that notice must state the particulars of the Force Majeure Event and the anticipated delay.
14.3 On providing the notice in clause 14.2, the Affected Party will have the time for performance of the affected obligations extended for a period equivalent to the period during which performance has been delayed, hindered or prevented.
14.4 The performance of the affected obligations must be resumed as soon as practicable after such Force Majeure Event is removed or has ceased.
14.5 If the delay due to the Force Majeure Event continues for 60 days, the Non-affected Party may terminate this agreement immediately on providing notice to the Affected Party.
15. Assignment, novation and other dealings
15.1 Subject to clause 15.2, neither party will at any time assign, mortgage, charge, declare a trust over or deal in any other manner with any or all of its rights under this agreement without the prior written consent of the other party, whose consent must not be unreasonably withheld.
15.2 etrainu is permitted to use subcontractors in relation to this agreement.
16. Variation
16.1 etrainu may amend these terms from time to time, subject to the rest of this clause 16.1.
16.2 etrainu will give the Customer written notice of any proposed change to these terms, and:
16.2(a) if the change is material and is not detrimental to the Customer, or the change is not material, that change will have effect from the latest of:
16.2(a)(i) the date identified in the written notice; and
16.2(a)(ii) 30 days from the date of the written notice; and
16.2(b) if the change is material and is detrimental to the Customer, the change will not be effective unless the parties agree in writing.
17. Waiver
17.1 No party 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 agreement 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.
17.2 Words or conduct referred to in clause 17.1 include any delay in exercising a right, any election between rights and remedies and any conduct that might otherwise give rise to an estoppel.
18. Remedies cumulative and no merger
18.1 Except as provided in this agreement and permitted by law, the rights, powers and remedies provided in this agreement are cumulative with and not exclusive to the rights, powers or remedies provided by law independently of this agreement.
18.2 On expiry or termination of this agreement, any rights of indemnification and obligations to indemnify set out in this agreement will not merge and will remain in force.
19. Severability
19.1 If the whole or any part of a provision of this agreement 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.
19.2 Clause 19.1 does not apply if the severance of a provision of this agreement in accordance with that clause would materially affect or alter the nature or effect of the parties' obligations under this agreement.
20. Entire agreement
This agreement states all the express terms agreed by the parties about its subject matter. It supersedes all prior agreements, understandings, negotiations and discussions in respect of its subject matter.
21. Relationship of the parties
21.1 Nothing in this agreement gives a party authority to bind any other party in any way.
21.2 Nothing in this agreement imposes any fiduciary duties on a party in relation to any other party.
22. Notices
22.1 A notice or other communication to a party under this agreement (Notice) must be:
22.1(a) in writing and in English; and
22.1(b) sent to that party in accordance with the details shown in the Statement of Work.
22.2 A Notice must be given by one of the methods set out in the table below.
22.3 A Notice is regarded as given and received at the time set out in the table below. However, if this means the Notice would be regarded as given and received outside the period between 9.00 am and 5.00 pm (addressee's time) on a Business Day (Business Hours Period), then the Notice will instead be regarded as given and received at the start of the following Business Hours Period.
Notice delivery method — When Notice is regarded as given and received
By hand to the nominated address — When delivered to the nominated address.
By pre-paid post to the nominated address — At 9.00 am (addressee's time) on the second Business Day after the date of posting.
By email to the nominated email address — Five hours after the time 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.
22.4 A Notice must not be given by electronic means of communication other than email.
22.5 This clause does not apply to the service of any proceedings or any documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
23. Counterparts
This agreement may be executed in any number of counterparts. All counterparts taken together constitute one instrument. A party may execute this agreement by signing any counterpart. The date on which the last counterpart is executed is the date of this agreement.
24. Multi-tiered dispute resolution procedure
24.1 A party to this agreement claiming that a dispute has arisen from or in connection with this agreement (Dispute) must not commence court or arbitration proceedings arising from or relating to the Dispute, other than a claim for urgent interlocutory relief, unless that party has attempted to resolve the Dispute in accordance with this clause 24.
24.2 Compliance with this clause is a condition precedent to the right of any party to commence litigation or arbitration arising from, or in connection with, the Dispute.
24.3 A party to this agreement claiming that the Dispute has arisen must give a written notice to the other party or parties to this contract in accordance with clause 22 of this agreement, specifying the nature of the Dispute (Dispute Notice) together with relevant supporting documents.
24.4 Following service of the Dispute Notice, a director of the Customer and a director of etrainu must meet promptly and attempt in good faith to resolve the Dispute.
24.5 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.
24.6 This clause 24 survives termination or expiry of this agreement.
25. Governing law and jurisdiction
25.1 This agreement is governed by the law in force in Queensland.
25.2 Each party irrevocably submits to the non-exclusive jurisdiction of courts exercising jurisdiction in Queensland and courts of appeal from them in respect of any proceedings arising out of or in connection with this agreement.
25.3 Each party irrevocably waives any right it has to object to the venue of any legal process in the courts described in clause 25.2 on the basis that:
25.3(a) any proceeding arising out of or in connection with this agreement has been brought in an inconvenient forum; or
25.3(b) the courts described in clause 25.2 do not have jurisdiction.
26. Preferred Vendor
26.1 The Customer hereby agrees that, for the Term of this agreement, etrainu shall be a preferred vendor for the Customer for online courses, learning management system and other prepared materials offered by etrainu.
26.2 The Customer agrees to actively promote etrainu and its services to the Customer’s affiliates and members.
Schedule 1 - Ready Made Content Access
1. Ready Made Content Access
1.1 Ready Made Content Access is a category of Services provided by etrainu.
1.2 This Schedule will only apply if identified in the Statement of Work. However, this Schedule only applies to the Ready Made Content Access identified in the Statement of Work.
1.3 etrainu operates a website (Site) to display ready made courses and other training content (Ready Made Content).
1.4 Where etrainu provides Ready Made Content Access, the Customer can use the Site to access Ready Made Content.
1.5 The Statement of Work will specify:
1.5(a) the initial period in which etrainu will provide Ready Made Content Access (Initial Period);
1.5(b) the number of Users that are allowed to access Ready Made Content as part of etrainu’s provision of Ready Made Content Access and other use restrictions;
1.5(c) the Ready Made Content that will be available to Users; and
1.5(d) the SOW Charges
1.6 Unless otherwise agreed in the Statement of Work:
1.6(a) unless either party gives 60 days’ notice before the expiry of the Initial Period, Ready Made Content Access will renew for a period equal to the Initial Period (Renewal Period); and
1.6(b) unless either party gives 60 days’ notice before the expiry of a Renewal Period, the Ready Made Content Access will renew for a further Renewal Period (and will continue to do so).
etrainu will give the Customer written notice of an upcoming Renewal Period such that the Customer has a reasonable opportunity to exercise its right to not enter that Renewal Period.
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 Ready Made Content for themselves.
1.8 The Intellectual Property Rights in any Ready Made Content are, as between the parties, owned by etrainu
Disclaimers and further obligations
1.9 Subject to clause 12.4, and to the extent permitted by law:
1.9(a) etrainu does not warrant that the Ready Made Content or Ready Made Content Access will operate in combination with other software;
1.9(b) 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
1.9(c) etrainu makes no warranty, and the Customer assumes the risk, as to the capabilities, suitability, use or performance of any Ready Made Content Access under this agreement except to the extent caused by etrainu’s negligence or etrainu’s breach of contract.
1.10 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.
1.11 Ready Made Content Access is directed to users who are at least 15 years old and are residing in and viewing Ready Made Content within Australia. etrainu does not represent that Ready Made Content Access is appropriate for use or available in other locations. If the Customer accesses Ready Made Content from outside Australia, it does so at its own risk and it is responsible for compliance with laws applicable to accessing Ready Made Content from its location.
1.12 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 Ready Made Content. etrainu may require the Customer to demonstrate its compliance with this clause 1.12 of this Schedule.
1.13 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.
1.14 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.
1.15 Introductory, trial or promotional access to Ready Made Content may be subject to additional terms.
1.16 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
1.17 In addition to any other obligations, upon termination of this agreement, the Customer must immediately:
1.17(a) cease accessing any Ready Made Content; and
1.17(b) return to etrainu any of its confidential Information and Intellectual Property Rights in the Customer’s possession or control.
Schedule 2 White-labelling
1. White-labelling
1.1 White-labelling is a category of Services provided by etrainu.
1.2 This Schedule will only apply if identified in the Statement of Work. This Schedule only applies to the White-labelling identified in the Statement of Work.
1.3 White-labelling provides the Customer with access to a unique custom-branded instance of the learning management site operated by etrainu (White-labelled Site).
1.4 The Statement of Work will contain any SOW Charges and other specifics for the White-labelled Site.
1.5 The Statement of Work will specify the initial period in which etrainu will provide White-labelling (Initial Period);
1.6 Unless otherwise agreed in the Statement of Work:
1.6(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
1.6(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).
etrainu will give the Customer written notice of an upcoming Renewal Period such that the Customer has a reasonable opportunity to exercise its right to not enter that Renewal Period.
1.7 Any agreed integrations will be listed in the Statement of Work.
1.8 Except to the extent that it includes any Customer Pre-existing IP Rights, the Intellectual Property Rights in any White-labelled Site are, as between the parties, owned by etrainu.
Schedule 3 - Online Training Module Development
1. Online Training Module Development
1.1 Online Training Module Development is a category of Services provided by etrainu.
1.2 This Schedule will only apply if identified in the Statement of Work. However, this Schedule only applies to the Online Training Module Development identified in the Statement of Work.
1.3 When providing Online Training Module Development, etrainu will develop Developed Online Training Modules for the Customer.
1.4 The parties agree to the following:
1.4(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);
1.4(b) etrainu and the Customer will work together to transform the Customer Material into a Developed Online Training Module;
1.4(c) the Customer will have the opportunity to review the Developed Online Training Module and either:
1.4(c)(i) approve the Developed Online Training Module; or
1.4(c)(ii) request that etrainu makes modifications to the Developed Online Training Module.
1.5 The Statement of Work will set out:
1.5(a) a description of the intended Developed Online Training Module;
1.5(b) a list of the Customer Materials that etrainu expects to receive from the Customer;
1.5(c) the date by which the Customer must provide etrainu with the Customer Materials;
1.5(d) the target date (if any) for the creation of the Developed Online Training Module; and
1.5(e) any SOW Charges.
Responsibility
1.6 The Customer acknowledges that at all times, it is responsible for ensuring the accuracy of any Developed Online Training Module.
1.7 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.
1.8 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.
1.9 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.
1.10 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.
1.11 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. The Customer’s liability under this indemnity is reduced to the extent the liability is caused or contributed to by the negligence of etrainu or etrainu’s breach of contract.
Intellectual Property Rights
1.12 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).
1.13 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.
1.14 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.
1.15 Clauses 1.12 to 1.15 of this Schedule survive termination or expiry of this agreement.
Schedule 4 - Platform Enhancements
1. Platform Enhancements
1.1 Platform Enhancements is a category of Services provided by etrainu.
1.2 This Schedule will only apply if identified in the Statement of Work. However, this Schedule only applies to the Platform Enhancements identified in the Statement of Work.
1.3 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.
1.4 The Intellectual Property Rights arising from any Platform Enhancements are owned by etrainu from the date of creation.
Schedule 5 - Site Building
1. Site Building
1.1 Site Building is a category of Services provided by etrainu.
1.2 This Schedule will only apply if identified in the Statement of Work. However, this Schedule only applies to the Site Building identified in the Statement of Work.
1.3 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.
1.4 The Statement of Work will specify the initial period in which etrainu will provide Site Building (Initial Period);
1.5 Unless otherwise agreed in the Statement of Work:
1.5(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
1.5(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).
etrainu will give the Customer written notice of an upcoming Renewal Period such that the Customer has a reasonable opportunity to exercise its right to not enter that Renewal Period.
1.6 Unless otherwise agreed, the Intellectual Property Rights arising from any Site Building are owned by etrainu from the date of creation.
1.7 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.
Schedule 6 - Technical Build
1. Technical Build
1.1 Technical Build is a category of Services provided by etrainu.
1.2 This Schedule will only apply if identified in the Statement of Work. However, this Schedule only applies to the Technical Build identified in the Statement of Work.
1.3 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.
1.4 Unless otherwise agreed, the Intellectual Property Rights arising from any Technical Build is owned by etrainu from the date of creation.
Schedule 7 - Custom Course Access
1. Custom Course Access
1.1 Custom Course Access is a category of Services provided by etrainu.
1.2 This Schedule will only apply if identified in the Statement of Work. However, this Schedule only applies to the Custom Course Access identified in the Statement of Work.
1.3 Where etrainu provides Custom Course Access, the Customer can access the Custom Course using a site hosted by etrainu.
1.4 The Statement of Work will identify one or more existing etrainu courses (Base Course) for customisation.
1.5 The parties agree to the following:
1.5(a) the Customer will provide etrainu with instructions, content and other materials (Customer Material) to be used to customise the Base Course;
1.5(b) etrainu and the Customer will work together to transform the Base Course into a customised course (Custom Course);
1.5(c) the Customer will have the opportunity to review the Custom Course and either:
1.5(c)(i) approve the Custom Course; or
1.5(c)(ii) request that etrainu makes modifications to the Custom Course; and
1.5(d) once the Custom Course has been approved, any additions and deletions from the Base Course are known as the Custom Course Edits.
1.6 The Statement of Work will specify:
1.6(a) a description of the intended Custom Course;
1.6(b) a list of the Customer Materials that etrainu expects to receive from the Customer;
1.6(c) the date by which the Customer must provide etrainu with the Customer Materials;
1.6(d) the target date (if any) for the creation of the Custom Course;
1.6(e) the initial period in which etrainu will provide Custom Course Access (Initial Period);
1.6(f) the number of Users that are allowed to access Custom Course as part of etrainu’s provision of Custom Course Access and other use restrictions; and
1.6(g) the SOW Charges
1.7 Unless otherwise agreed in the Statement of Work:
1.7(a) unless either party gives 60 days’ notice before the expiry of the Initial Period, Custom Course Access will renew for a period equal to the Initial Period (Renewal Period); and
1.7(b) unless either party gives 60 days’ notice before the expiry of a Renewal Period, the Custom Course Access will renew for a further Renewal Period (and will continue to do so).
etrainu will give the Customer written notice of an upcoming Renewal Period such that the Customer has a reasonable opportunity to exercise its right to not enter that Renewal Period.
1.8 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 the Custom Course for themselves.
Responsibility
1.9 The Customer acknowledges that at all times, it is responsible for ensuring the accuracy of any Custom Course Edits.
1.10 For as long as the Custom Course is available on any site hosted by etrainu, the Customer must immediately notify etrainu if any part of the Custom Course has become inaccurate or out-of-date.
1.11 Where changes need to be made to a Custom Course, etrainu will charge for its time making those changes at its then-current rates.
1.12 Where etrainu has reasonable grounds to assume that the Custom Course is out-of-date or inaccurate, it may, without liability to the Customer, remove that Custom Course from any site hosted by etrainu and notify the Customer.
1.13 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 Custom Course Edits. For the avoidance of doubt, no cap or exclusion of liability applies to the Customer’s liability under this indemnity. The Customer’s liability under this indemnity is reduced to the extent the liability is caused or contributed to by the negligence of etrainu or etrainu’s breach of contract.
Intellectual Property Rights
1.14 Except to the extent that it includes any Customer Pre-existing IP Rights, as between the parties, the Intellectual Property Rights in a Custom Course is owned by etrainu from the date of creation (CC Developed IP).
1.15 If any of the Customer's personnel is the author of any copyright works created during the course of creating a Custom Course, 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.
1.16 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 Custom Course 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.
1.17 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.
Disclaimers and further obligations
1.18 Subject to clause 12.4, and to the extent permitted by law:
1.18(a) etrainu does not warrant that the Custom Course or Custom Course Access will operate in combination with other software;
1.18(b) 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
1.18(c) etrainu makes no warranty, and the Customer assumes the risk, as to the capabilities, suitability, use or performance of any Custom Course Access under this agreement except to the extent caused by etrainu’s negligence or breach of contract.
1.19 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.
1.20 Custom Course Access is directed to users who are at least 15 years old and are residing in and viewing Custom Course within Australia. etrainu does not represent that Custom Course Access is appropriate for use or available in other locations. If the Customer accesses Custom Course from outside Australia, it does so at its own risk and it is responsible for compliance with laws applicable to accessing Custom Course from its location.
1.21 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 Custom Course. etrainu may require the Customer to demonstrate its compliance with this clause 1.21 of this Schedule.
1.22 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.
1.23 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.
1.24 Introductory, trial or promotional access to Custom Course Access may be subject to additional terms.
Termination
1.25 In addition to any other obligations, upon termination of this agreement, the Customer must immediately:
1.25(a) cease accessing any Custom Course; and
1.25(b) return to etrainu any of its confidential Information and Intellectual Property Rights in the Customer’s possession or control.
Schedule 8 - AI Course Authoring
1. AI Course Authoring
1.1 AI Course Authoring is a category of Services provided by etrainu.
1.2 This Schedule will only apply if identified in the Statement of Work. However, this Schedule only applies to the AI Course Authoring identified in the Statement of Work.
1.3 Where etrainu provides AI Course Authoring the Customer can use generative AI technology to create an AI Developed Training Module.
1.4 The Statement of Work will specify:
1.4(a) the initial period in which etrainu will provide AI Course Authoring (Initial Period);
1.4(b) the number of Users that are allowed to access AI Course Authoring as part of etrainu’s provision of AI Course Authoring and other use restrictions; and
1.4(c) the SOW Charges
1.5 Unless otherwise agreed in the Statement of Work:
1.5(a) unless either party gives 60 days’ notice before the expiry of the Initial Period, AI Course Authoring will renew for a period equal to the Initial Period (Renewal Period); and
1.5(b) unless either party gives 60 days’ notice before the expiry of a Renewal Period, the AI Course Authoring will renew for a further Renewal Period (and will continue to do so).
etrainu will give the Customer written notice of an upcoming Renewal Period such that the Customer has a reasonable opportunity to exercise its right to not enter that Renewal Period.
1.6 Where applicable, the Statement of Work may contain additional terms that apply to the Customer’s use of AI Course Authoring.
Restrictions and responsibilities
1.7 The Customer acknowledges that at all times, it is responsible for:
1.7(a) ensuring that its users comply with clauses 1.8, 1.9 and 1.10 of this Schedule;
1.7(b) ensuring the accuracy of any AI Developed Training Module; and
1.7(c) all acts and omissions of its users in connection with AI Course Authoring.
1.8 The Customer must not:
1.8(a) access or use the AI Course Authoring except as permitted by this agreement;
1.8(b) use the AI Course Authoring in any way that is improper or breaches any Applicable Laws, infringes any person's rights (including Intellectual Property Rights and privacy rights) or gives rise to any civil or criminal liability;
1.8(c) interfere with the AI Course Authoring, etrainu’s systems or others' use of the services of etrainu;
1.8(d) share account access or authentication details;
1.8(e) introduce any viruses or any other malicious code into the AI Course Authoring service;
1.8(f) use AI Course Authoring to carry out security breaches or disruptions of a network;
1.8(g) attempt to access any data or log into any server or account that the Customer is not expressly authorised to access;
1.8(h) circumvent or attempt to circumvent security measures of any of network, account or host or those of any third party; or
1.8(i) use AI Course Authoring to transmit, publish or communicate material that is, defamatory, offensive, abusive, indecent, menacing, harassing or unwanted.
1.9 Without limiting any other restriction under this agreement, the Customer must not, and must ensure that its users do not:
1.9(a) use AI Course Authoring to generate content intended to replace professional judgement or regulated decision‑making;
1.9(b) input Personal Information, Sensitive Information or regulated data unless the Customer has obtained all required rights, notices and consents;
1.9(c) use AI Course Authoring to create, train, fine‑tune or improve any artificial intelligence or machine learning model other than through ordinary use of the Services; or
1.9(d) attempt to circumvent technical safeguards, retention controls or usage limitations applicable to AI Course Authoring.
1.10 The Customer must not rely on any AI Output as professional, legal, medical, financial, due diligence, risk management, regulatory, safety or compliance advice and must ensure that all AI Outputs are independently reviewed, verified and approved by a suitably qualified human prior to use, publication or distribution.
1.11 The Customer agrees to:
1.11(a) comply with this agreement, all Applicable Laws and our reasonable requests;
1.11(b) provide all assistance, information, documentation, access (including to your systems and premises if applicable), facilities and other things reasonably necessary to enable etrainu to comply with its obligations under this agreement or under Applicable Law, free from harm or risk to health or safety at the times and on the dates reasonably requested by us or as agreed between the parties;
1.11(c) ensure all information provided to etrainu is kept current and accurate;
1.11(d) to make any changes to its systems, such as system upgrades, that may be required to support the delivery and operation of any AI Course Authoring;
1.11(e) ensure its systems and data are appropriately backed up and up to date before we perform any Services that may affect them; and
1.11(f) notify etrainu of any breach or suspected breach of this Schedule by the Customer, within 48 hours of becoming aware of any such breach or suspected breach.
1.12 The Customer acknowledges and agrees that:
1.12(a) the operation of the AI Course Authoring is reliant on the accuracy and completeness of Customer Data, and the provision by the Customer of Customer Data that is inaccurate or incomplete may affect the use, output and operation of the AI Course Authoring;
1.12(b) other than for unauthorised access or disclosure caused or contributed to by etrainu or its service providers, to the extent permitted by law, etrainu assumes no responsibility or liability for Customer Data;
1.12(c) other than for unauthorised access or disclosure caused or contributed to by etrainu or its service providers, the Customer is solely responsible for Customer Data and the consequences of using, disclosing, storing or transmitting it. It is Customer’s responsibility to back up Customer Data; and
1.12(d) Customer will be responsible for the use of any part of the AI Course Authoring by any person it provides with access to the AI Course Authoring, and it must ensure that no person uses any part of the AI Course Authoring:
1.12(d)(i) to break any Applicable Law or infringe any person’s rights (including Intellectual Property Rights);
1.12(d)(ii) to transmit, publish or communicate material that is defamatory, offensive, abusive, indecent, menacing or unwanted; or
1.12(d)(iii) in any way that damages, interferes with or interrupts the supply of the AI Course Authoring.
1.13 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.
1.14 AI Course Authoring is directed to users who are at least 15 years old and are residing within Australia. etrainu does not represent that AI Course Authoring is appropriate for use or available in other locations. If the Customer accesses AI Course Authoring from outside Australia, it does so at its own risk and it is responsible for compliance with laws applicable to accessing AI Course Authoring from its location.
1.15 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 AI Course Authoring. etrainu may require the Customer to demonstrate its compliance with this clause 1.15 of this Schedule.
1.16 The Customer must comply with any reasonable third‑party usage restrictions notified by etrainu from time to time.
1.17 For as long as the AI Developed Training Module is available on any site hosted by etrainu, the Customer must immediately notify etrainu if any part of the AI Developed Training Module has become inaccurate or out-of-date.
1.18 Where etrainu has reasonable grounds to assume that the AI Developed Training Module is out-of-date or inaccurate, it may, without liability to the Customer, remove that AI Developed Training Module from any site hosted by etrainu and notify the Customer.
1.19 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.
1.20 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.
1.21 Introductory, trial or promotional access to Custom Course may be subject to additional terms.
Liability and disclaimers
1.22 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 AI Developed Training Module or the Customer’s use of AI Course Authoring. For the avoidance of doubt, no cap or exclusion of liability applies to the Customer’s liability under this indemnity. The Customer’s liability under this indemnity is reduced to the extent the liability is caused or contributed to by the negligence of etrainu or etrainu’s breach of contract.
1.23 Subject to clause 12.4, and to the extent permitted by law:
1.23(a) etrainu does not warrant that the AI Developed Training Modules or AI Course Authoring will operate in combination with other software;
1.23(b) 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
1.23(c) etrainu makes no warranty, and the Customer assumes the risk, as to the capabilities, suitability, use or performance of any AI Developed Training Modules or AI Course Authoring under this agreement except to the extent caused by etrainu’s negligence or breach of contract.
1.24 Without limiting clause 1.23(c), etrainu may give 90 days’ notice to terminate the supply of AI Course Authoring if it ceases to be authorised to supply components of that service. In that case, etrainu will refund any prepaid amounts that relate to the period after termination.
1.25 To the maximum extent permitted by law:
1.25(a) etrainu does not warrant the availability, accuracy or uninterrupted operation of AI Course Authoring; and
1.25(b) etrainu is not responsible for any delay, outage or failure caused by third‑party services outside its reasonable control.
1.26 To the maximum extent permitted by law:
1.26(a) etrainu excludes all liability arising from or in connection with AI Outputs; and
1.26(b) AI Outputs are provided “as is” without warranties of any kind.
1.27 The Customer indemnifies etrainu against all claims, losses and liabilities arising from:
1.27(a) misuse of AI Course Authoring;
1.27(b) reliance on AI Outputs; or
1.27(c) unlawful, infringing or non‑compliant inputs provided by the Customer or its users.
1.28 To the extent AI Course Authoring relies on third‑party artificial intelligence models, hosting or infrastructure services that are outside etrainu’s reasonable control, etrainu is not liable for any interruption, unavailability or outage of AI Course Authoring caused by those third‑party services.
AI Outputs, data and Intellectual Property Rights
1.29 The Customer acknowledges and agrees that any content, materials or outputs generated using AI Course Authoring (AI Outputs):
1.29(a) may be inaccurate, incomplete, misleading, biased or non‑unique; and
1.29(b) are generated automatically without human review by etrainu.
1.30 As between the Customer and etrainu etrainu and/or its licensors owns the Intellectual Property Rights in the AI Course Authoring Service (other than the AI Outputs and Customer Data).
1.31 Except to the extent it includes etrainu Pre-existing IP Rights, Intellectual Property Rights in any Customer Data or AI Outputs are deemed to be part of the Customer Pre-Existing IP Rights for the purpose of this agreement.
1.32 To the extent permitted by law, AI Outputs are used by the Customer entirely at its own risk.
1.33 The Customer warrants that it has all rights, licences and consents necessary to submit any data, prompts or materials to the AI Course Authoring service.
1.34 The Customer acknowledges and agrees that:
1.34(a) AI Course Authoring is not custom‑trained for the Customer; and
1.34(b) AI Outputs may be similar or identical to outputs generated for other customers.
1.35 AI Outputs may not be, and the Customer must not represent that the AI Outputs are, proprietary, exclusive or uniquely generated for the Customer.
1.36 The Customer acknowledges that AI Course Authoring relies on third‑party artificial intelligence models, infrastructure and hosting providers.
1.37 In connection with AI Course Authoring, the Customer:
1.37(a) (where applicable) acts as data controller in respect of all Personal Information submitted to the Services;
1.37(b) warrants compliance with all applicable privacy and data protection laws; and
1.37(c) must not submit Personal Information unless it is lawful and necessary to do so.
1.38 The Customer must not do anything that would cause etrainu or its upstream service providers to breach applicable privacy or data protection laws.
Additional definitions
1.39 In this Schedule, Customer Data means:
1.39(a) any AI Outputs, any outputs and all Intellectual Property Rights created, owned or licensed by the Customer or its personnel and any improvements, modifications or enhancements of such Intellectual Property Rights; and
1.39(b) the information, materials, logos, documents, qualifications and other Intellectual Property Rights or data inputted by the Customer or its users into the AI Course Authoring service or stored by or generated by its use of the AI Course Authoring service, including any branding and any Personal Information collected, used, disclosed, stored or otherwise handled in connection with AI Course Authoring,
except to the extent comprising etrainu Pre-existing IP.
General
1.40 The Customer may download copies 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.
1.41 This Schedule survives termination or expiry of this agreement.
Schedule 9 – Readymade SCORM Content
1. Readymade SCORM Content
1.1 Readymade SCORM Content is a category of Services provided by etrainu.
1.2 Readymade SCORM Content is elearning course content in SCORM format (Readymade SCORM Content).
1.3 etrainu's provision of Readymade SCORM Content does not include access to etrainu’s elearning platform.
1.4 The Statement of Work will specify:
1.4(a) the initial period in which etrainu will licence Readymade SCORM Content (Initial Period);
1.4(b) the number of employees, officers, contractors and agents (Users) that are allowed to access the Readymade SCORM Content and other use restrictions;
1.4(c) the Readymade SCORM Content that will be available to Users; and
1.4(d) the SOW Charges
1.5 Unless otherwise agreed in a Statement of Work:
1.5(a) unless either party gives 60 days’ notice before the expiry of the Initial Period, the licence to Readymade SCORM Content will renew for a period equal to the Initial Period (Renewal Period); and
1.5(b) unless either party gives 60 days’ notice before the expiry of a Renewal Period, the licence to Readymade SCORM Content will renew for a further Renewal Period (and will continue to do so).
etrainu will give the Customer written notice of an upcoming Renewal Period such that the Customer has a reasonable opportunity to exercise its right to not enter that Renewal Period.
Customer obligations and responsibilities
1.6 The Customer is responsible for all use of Readymade SCORM Content, and must ensure that no person uses Readymade SCORM Content:
1.6(a) in breach of this agreement;
1.6(b) for any purpose other than the Customer’s internal business; or
1.6(c) in a manner that breaks any law or infringes any person’s rights (including, but not limited to, Intellectual Property Rights).
1.7 Additionally, the Customer must not:
1.7(a) permit any third party to access the Readymade SCORM Content;
1.7(b) lease, sublicence, resell or otherwise distribute the Readymade SCORM Content;
1.7(c) create derivate works based on any Readymade SCORM Content;
1.7(d) copy, frame or mirror any part or content of any Readymade SCORM Content;
1.7(e) reverse engineer any Readymade SCORM Content; or
1.7(f) access any Readymade SCORM Content in order to:
1.7(f)(i) build a competitive product or service, or
1.7(f)(ii) copy any features, functions or graphics of any Readymade SCORM Content,
1.7(g) and must ensure that no person does any of the acts described in clauses 1.7(a) to 1.7(f) of this Schedule.
1.8 This Customer is responsible for the acts and omissions of any user of the Readymade SCORM Content as if they were its own acts or omissions (regardless of whether that user was authorised by the Customer or not).
1.9 Subject to clause 12.4, the Customer acknowledges and agrees that etrainu is not responsible for the Customer’s use of the Readymade SCORM Content, or any actions it takes or conclusions it reaches based on its use of the Readymade SCORM Content.
Disclaimers and further obligations
1.10 Subject to clause 12.4, and to the extent permitted by law:
1.10(a) etrainu does not warrant that the Readymade SCORM Content will operate combination with other software;
1.10(b) 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
1.10(c) etrainu makes no warranty, and the Customer assumes the risk, as to the capabilities, suitability, use or performance of any Readymade SCORM Content under this agreement except to the extent caused by etrainu’s negligence or etrainu’s breach of contract.
1.11 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 Readymade SCORM Content other than the warranties expressly set out in this agreement.
1.12 Readymade SCORM Content is directed to users who are at least 15 years old and are residing in and viewing Readymade SCORM Content within Australia. etrainu does not represent that Readymade SCORM Content is appropriate for use or available in other locations. If the Customer accesses Readymade SCORM Content from outside Australia, it does so at its own risk and it is responsible for compliance with laws applicable to accessing Readymade SCORM Content from its location.
1.13 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 Readymade SCORM Content. etrainu may require the Customer to demonstrate its compliance with this clause 1.13 of this Schedule.
1.14 The Customer acknowledges and agrees that etrainu has no obligation to keep Readymade SCORM Content up-to-date.
Termination
1.15 In addition to any other obligations, upon termination of this agreement, the Customer must immediately:
1.15(a) cease accessing any Readymade SCORM Content; and
1.15(b) return to etrainu any of its confidential Information and Intellectual Property Rights in the Customer’s possession or control.
Support
1.16 Unless etrainu agrees otherwise, it has no obligation to provide any services or products to the Customer in relation to the Readymade SCORM Content.
Schedule 10 - 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 the 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:
1.3(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);
1.3(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;
1.3(c) the Customer will have the opportunity to review the CPS Online Training Module and either:
1.3(c)(i) approve the CPS Online Training Module; or
1.3(c)(ii) request that etrainu makes modifications to the CPS Online Training Module;
1.3(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;
1.3(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
1.3(f) etrainu may agree (as part of the 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.
2. Statement of Work
2.1 The Statement of Work will set out:
2.1(a) a description of the intended CPS Online Training Module;
2.1(b) a list of the Customer Materials that etrainu expects to receive from the Customer;
2.1(c) the date by which the Customer must provide etrainu with the Customer Materials;
2.1(d) the target date (if any) for the creation of the CPS Online Training Module;
2.1(e) any SOW Charges; and
2.1(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 each 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).
2.4 Once a CPS Online Training Module is made available on the Standard etrainu LMS, etrainu’s right to supply access to that CPS Online Training Module may continue after expiry or termination of the relevant Statement of Work (and/or this agreement) in accordance with clause 5 of this Schedule until the Long Stop Date. For the purposes of this Schedule, Long Stop Date means, in respect of a CPS Online Training Module, the date on which etrainu has ceased supplying access to that CPS Online Training Module to all customers under Existing Customer Contracts, including any Permitted Renewal or Extension.
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. The Customer’s liability under this indemnity is reduced to the extent the liability is caused or contributed to by the negligence of etrainu or etrainu’s breach of contract.
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.
4. Intellectual Property Rights
4.1 Except to the extent that it includes any Customer Pre-existing IP Rights, 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. The licence in this clause 4.5 survives expiry or termination of the relevant Statement of Work (and/or this agreement) and continues until the Long Stop Date, solely to the extent necessary for etrainu to supply access to the relevant CPS Online Training Module under Existing Customer Contracts, including any Permitted Renewal or Extension, in accordance with clause 5 of this Schedule.
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:
4.7(a) until the Long Stop Date:
4.7(a)(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;
4.7(a)(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 however, if the Customer provided SCORM files to etrainu, those SCORM files can be returned on request; and
4.7(a)(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
4.7(b) following the Long Stop Date:
4.7(b)(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 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
4.7(b)(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 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 this Schedule survives termination or expiry of this agreement.
5. Run-off after expiry or termination
5.1 On expiry or termination of this Statement of Work (and/or the agreement):
5.1(a) etrainu may continue to supply access to the CPS Online Training Modules to customers under Existing Customer Contracts until the Long Stop Date, including during any Permitted Renewal or Extension; and
5.1(b) etrainu will continue to pay the Customer the corresponding commission amounts in accordance with the relevant Statement of Work for the period during which customers are actually able to access the CPS Online Training Modules under Existing Customer Contracts.
6. Additional definitions
6.1 Existing Customer Contract means a binding contract between etrainu and a customer, entered into before expiry or termination of the relevant Statement of Work, under which etrainu is required or permitted to supply access to one or more CPS Online Training Modules.
6.2 Permitted Renewal or Extension means any renewal, extension, holding-over period or continuation of an Existing Customer Contract that is expressly provided for under the terms of that Existing Customer Contract.
Schedule 11 - 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 the 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).
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.
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 Charges payable by the Customer for the Resold Products are specified in the Statement of Work.
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:
4.2(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);
4.2(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);
4.2(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:
4.7(a) any Resold Customer Contract; or
4.7(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.
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 Charges for those Resold Products.
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, the Customer must promptly deal with all complaints or claims from its customers in respect of the Resold Products.
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:
7.1(a) any breach of this Schedule by the Customer; and/or
7.1(b) any claim brought by Resold Customer or other third party against etrainu in connection with the Resold Products.