1. TERM
This Agreement commences on the Commencement Date and continues for the Programme Term unless terminated in accordance with this Agreement (Term).
2. PARTICIPANT OBLIGATIONS
2.1. Access to Programme
(a) The Participant must provide information to the Supplier that is true, accurate and not misleading or deceptive. If such information changes, the Participant must promptly update the Programme.
(b) At all times during the Term, the Participant must (at its cost):
(i) obtain and maintain all hardware, software and communications equipment necessary for it and each Authorised User to access and use the Programme, and ensure that they comply with:
(A) applicable specifications and guidelines notified from time to time; and
(B) all reasonable security standards and any requirements otherwise communicated to the Participant from time to time;
(ii) provide the Supplier with all necessary co-operation and access to its systems, data and Personnel as may be required by the Supplier to provide the Services;
(iii) comply with all Relevant Laws;
(iv) comply with all reasonable directions, policies and guidelines of the Supplier as notified from time to time;
(v) perform all of its obligations in a timely and efficient manner; and
(vi) ensure that the Authorised Users use the Programme strictly in accordance with this Agreement. Any act or omission of an Authorised User is deemed an act or omission of the Participant.
2.2. Access restrictions
During the Term, the Participant must comply with the Supplier’s Acceptable Use Policy and not access, store, distribute or transmit:
(a) any Malware; or
(b) any material, data or content that:
(i) is unlawful, unethical, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive or a contravention of the rights of any Third Party;
(ii) facilitates illegal activity;
(iii) causes damage or injury to any person or property (including Intellectual Property); or
(iv) corrupts, degrades or disrupts the operation or functionality of the Programme.
2.3. Use restrictions
The Participant must not, and must not attempt to and must not assist any Third Party to:
(a) adapt, alter, copy, create derivative works from, disassemble, display, distribute, download, duplicate, frame, mirror, modify, reduce to human readable form, republish, reverse compile, reverse engineer or transmit all or any portion of the Programme by any means;
(b) infringe the Supplier's Intellectual Property;
(c) use the Programme to create any other product or service, including a product or service that is competitive with the Programme;
(d) build a product, service or programme which competes with the Programme;
(e) assign, license, transfer any rights in, or otherwise commercially exploit, the Programme; or
(f) engage in illegal behaviour or any the following:
(i) unauthorised access to or use of data, services, systems or networks, including any attempt to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without express authorisation of the owner of the system or network;
(ii) interference with service to any user, host or network, including mail bombing, flooding, deliberate attempts to overload a system and broadcast attacks;
(iii) use of an Internet account or computer without the owner’s authorisation; and
(iv) collect information by deceit, including Internet scamming, password robbery, phishing, security hole scanning and port scanning.
3. SUPPLIER OBLIGATIONS
3.1. Service obligations and exclusions
(a) During the Term, the Supplier must provide the Services to the Participant.
(b) The obligation under clause 3.1(a) will not apply in the event of:
(i) any non-conformance which is caused, or contributed to, by use of the Programme contrary to the Supplier 's instructions or the terms of this Agreement;
(ii) modification or alteration of the Programme by any party other than the Supplier;
(ii) the unsuitability or malfunction of the Participant’s network, systems, computer hardware or software; or
(iv) a Force Majeure Event.
3.2. Remedial action
(a) In the event the Supplier fails to provide the Services in accordance with clause 3.1 and following notice from the Participant, the Supplier will use reasonable endeavours to:
(i) correct any such non-conformance; or
(ii) provide the Participant with an alternative means of accomplishing the desired outcome.
(b) Notwithstanding the foregoing and subject to requirements of any Relevant Laws, the Supplier:
(i) does not warrant that the Participant's use of the Programme will be uninterrupted, Malware free, including virus-free, or error-free, nor that the Services and the information obtained by the Participant through the Services, will meet its requirements;
(ii) is not responsible for any delays, delivery failures, or any other Loss resulting from the transfer of data over communications networks and facilities and the Participant acknowledges that the Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities or networks; and
(iii) is not responsible for the reliability, accuracy or currency of any information or Participant Data. The Participant is solely responsible for uploading or submitting to the Programme the most up-to-date information or Participant Data.
3.3. General maintenance
The Supplier will use reasonable endeavours to make the Programme accessible 24 hours a day, 7 days a week, except for:
(a) planned maintenance carried out at times advised in advance by the Supplier; and
(b) unscheduled maintenance which may need to be performed from time to time. The Supplier will, where practicable, use reasonable endeavours to conduct any unscheduled maintenance outside of Normal Business Hours.
3.4. Modification and discontinuance of the Service
(a) The Supplier may add, modify or discontinue any functionality, feature or any other aspect of the Services, including in relation to the Programme, at its discretion and without further notice.
(b) Where it is a material adverse change in the core functionality of the Services, then the Supplier will notify the Participant by sending a notification via the Programme or to the Participant’s email address.
(c) The Supplier will not be liable for any modification, suspension or discontinuation of any functionality, feature or any other aspect of the Services.
4. ADDITIONAL SERVICES
(a) Subject to compliance by the parties with clause 4(b), the Supplier will provide the Additional Services to the Participant in accordance with this Agreement.
(b) The Participant may, at any time during the Term, request the Supplier to provide Additional Services in relation to the Programme by giving the Supplier a written proposal to that effect (Additional Service Proposal), including in relation to:
(i) any training requested by the Participant in relation to accessing and using the Programme; and
(ii) any changes or modifications to the Programme customised for the Participant's specific needs or requirements.
(c) The Supplier will consider any requests for Additional Services and will notify the Participant within a reasonable period whether the Supplier:
(i) agrees to provide the Additional Services as set out in the Additional Service Proposal, including the applicable fees;
(ii) does not agree to provide the Additional Services; or
(iii) does not agree to provide the Additional Services as set out in the Additional Service Proposal, but offers to provide some of those services and/or similar services, whether for the fee proposed in the Additional Service Proposal or otherwise.
(d) An Additional Service Proposal will not be binding on either party, unless the Additional Service Proposal has been signed by duly authorised representatives of both parties.
5. THIRD PARTY PROVIDERS
(a) The Participant’s access to the Programme may enable the Participant to use, access or otherwise integrate with Third Party Products.
(b) The Supplier makes no representations and will have no liability or obligation in relation to the Third Party Products or the conduct, act or omission of another participant to the Programme.
(c) The Supplier does not endorse, sponsor or approve any Third Party Products made available via the Programme. It is the Participant's sole responsibility to determine that specific products or services, introduced or used by the Participant, or by an Authorised User, meets the needs of its business or requirements and are suitable for the purposes for which they are used.
(d) Any rights the Participant may have to access Third Party Products will be limited to the:
(i) extent of the Supplier's ability to license such rights to the Participant; or
(ii) relevant Third Party Product usage terms or licence.
6. PAYMENT
6.1. Payment of Fees
(a) In consideration for the Supplier's provision of the Services during the Term, the Participant must pay the Fees by the payment method agreed between the parties.
(b) If GST is imposed on a supply made under, or in connection with, this Agreement, the recipient of the supply must pay the supplier an amount equal to the GST payable on the supply in addition to, and at the same time as, any consideration for the supply.
(c) If the Registration Form specifies that the Participant is entitled to a trial period (Trial Period):
(i) the Participant will not be required to pay any Fees during the Trial Period; and
(ii) the Fees will be payable on and from the date after the Trial Period expires.
6.2. Fee increases
(a) The Supplier may increase the Fees at any time upon 30 days’ notice to the Participant.
(b) If the Participant does not agree to a fee increase, the Participant may terminate this Agreement by notice to the Supplier no later than 14 days after the date the Participant received notice of the fee increases.
6.3. Outstanding amounts
(a) If the Participant fails to pay the Supplier the Fees or any amount owing under this Agreement by the due date, without limiting any other remedies available to the Supplier, the Supplier may, in its discretion, either:
(i) immediately suspend the Services (without liability to the Participant) until all overdue amounts are paid in full; or
(ii) terminate this Agreement.
(b) The Participant must pay the Supplier all costs incurred in recovering any outstanding amounts owing under this Agreement.
7. Intellectual Property and User Licences
7.1. General
(a) Nothing in this Agreement assigns, transfers or grants any right, title or interest in or to a party's Intellectual Property, other than as expressly stated in this Agreement.
(b) The Participant acknowledges and agrees that all Intellectual Property subsisting in, or otherwise underlying, the Programme, is owned by the Supplier.
(c) The Participant must not submit, publish or upload any Participant Data onto the Programme unless the Participant has the right to do so.
7.2. Licence to permit access by Authorised Users
(a) The Supplier grants the Participant a non-exclusive, personal, non-transferable and non-sub-licensable licence to permit 1 Authorised User to access and use the Programme during the Term solely for the Participant's internal and ordinary business purposes (User Licence).
(b) The quantity of User Licences granted to the Participant must be specified in the Registration Form or otherwise agreed between the parties.
7.3. Usernames and passwords
(a) The Supplier will provide the Participant with a username and password for each Authorised User (Credentials).
(b) The Credentials must not be shared with any other person for any reason.
(c) The Participant must ensure each Authorised User changes its password:
(i) promptly after being issued with the Credentials; and
(ii) on a regular basis during the Term.
(d) The Participant acknowledges that it is solely responsible for:
(i) maintaining the confidentiality of the Credentials; and
(ii) all access and use of the Programme that results from any person using the Credentials.
(e) The Participant must implement security measures to ensure that no unauthorised person may gain access to the Programme using the Credentials or otherwise.
7.4. Access permissions
The Participant:
(a) is solely responsible for setting and maintaining appropriate access permissions for each Authorised User; and
(b) may revoke or change an Authorised User’s access permissions at any time and for any reason by updating the relevant details in their account.
7.5. Audit
(a) The Supplier or its Personnel may audit the Programme to verify the Participant's compliance with this Agreement.
(b) If such an audit reveals that any Credentials have been provided to any person who is not an Authorised User, then, without prejudice to the Supplier's other rights, the Participant must promptly disable such Credentials and the Supplier may terminate that User Licence.
8. CONFIDENTIAL INFORMATION
8.1. Obligation not to disclose Confidential Information
(a) The Participant must keep the Confidential Information of the Supplier confidential, and not disclose it except:
(i) to its Representatives for the purpose of performing its obligations under this Agreement;
(ii) as required by law or a regulatory body (including a relevant stock exchange), court or governmental or administrative authority, subject to clause 8.2;
(iii) as permitted or required by the Supplier; or
(iv) to its professional advisers engaged to provide legal, taxation or accounting advice, and to the extent necessary.
(b) The Participant must comply with any direction of the Supplier to return, destroy or permanently delete all copies of the Confidential Information (to the extent reasonably practicable), at any time, at the Participant's expense.
8.2. Disclosure
(a) Any disclosure made under clause 8.1(a)(i) or 8.1(a)(iv) must be on terms no less restrictive than this Agreement.
(b) The Participant must notify the Supplier prior to disclosing any information pursuant to clause 8.1(a)(ii), and provide the Supplier the opportunity to challenge the requirement or redact information not required to be disclosed.
8.3. Uncertainty
If there is any uncertainty as to whether any information is Confidential Information, that information must be treated as Confidential Information of the Supplier.
8.4. Survival
This clause 8 applies as long as the information remains Confidential Information.
9. PARTICIPANT DATA
9.1. Licence for Participant Data
(a) The Participant retains ownership of the Participant Data and will have sole responsibility for its legality, reliability, integrity, accuracy and quality.
(b) The Participant grants the Supplier a worldwide, non-exclusive, royalty-free, perpetual, transferable licence to use, disclose, reproduce, store, distribute, publish, export, adapt, edit, translate, produce derivative works from or copy the Participant Data for the following purposes:
(i) enabling the Supplier to perform its obligations and exercise its rights under this Agreement;
(ii) informing the Participant of other products or services that the Supplier or its Related Bodies Corporate may offer from time to time or in relation to Third Party Products;
(iii) using usage patterns, trends and other statistical or behavioural data derived from use of the Programme for the purposes of providing, operating, maintaining, or improving the Services or any of the Supplier products and services; and
(iv) sharing Participant Data with a Third Party for the purposes of performing or improving the Services.
(c) The Supplier will not pre-screen, monitor, vet or edit any Participant Data, unless required to do so under any Relevant Law.
9.2. Back-Up Policy
(a) The Supplier will follow its archiving procedures for Participant Data in accordance with its standard Back-Up Policy from time to time.
(b) The Supplier will not be responsible for any loss, destruction, alteration, corruption or disclosure of any Participant Data caused, or contributed to, by an act or omission of the Participant or any Third Party.
9.3. Personal Information and other sensitive data
The Participant warrants that, in relation to any Participant Data comprising Personal Information or otherwise sensitive data:
(a) it has been collected in accordance with its own privacy policy and applicable Privacy Laws; and
(b) it has obtained all necessary Approvals and consents to grant the Supplier the licence in clause 9.1(b), or to make such information available to the Supplier for its use.
10. LIABILITY AND DISCLAIMERS
10.1. Non-excludable Obligations
(a) To the extent that the Participant acquires goods or services from the Supplier as a consumer within the meaning of the Australian Consumer Law, the Participant may have certain rights and remedies (including rights in relation to consumer guarantees) that cannot be excluded, restricted or modified by agreement.
(b) Nothing in this Agreement operates to exclude, restrict or modify the application of any condition, warranty or provision implied by law, the exercise of any right or remedy, or the imposition of any liability under the Australian Consumer Law or any other statute where to do so would:
(i) contravene that statute; or
(ii) cause any term of this Agreement to be void,
(Non-excludable Obligation).
10.2. Exclusion of liability
Except in relation to Non-excludable Obligations:
(a) the Supplier will not be liable to the Participant or any other person for any Consequential Loss for breach, or otherwise suffered as a result, of this Agreement; and
(b) the aggregate maximum liability of the Supplier (including legal costs incurred in defending a Claim) arising from, or in connection with, this Agreement is limited to the amount of Fees paid by the Participant in the 6 months prior to the claim.
10.3. No warranties or guarantees
Except in relation to Non-excludable Obligations:
(a) all conditions, warranties, guarantees, rights, remedies, liabilities or other terms that may be implied or imposed by custom or law are expressly excluded under this Agreement; and
(b) the Supplier makes no representations, warranties or guarantees in relation to the availability, continuity, reliability, accuracy, currency or security of the Programme.
10.4 Disclaimers
(a) Any materials, information or other content posted on, or via, the Programme by the Supplier are not intended to amount to advice, endorsement or recommendation by the Supplier on which reliance should be placed.
(b) The Programme should not be considered as an advice tool (nor any similar function).
(c) The Programme is intended to facilitate an online learning portal where users can undertake self-learning courses and engage in online group workshops / facilitations and the Supplier’s role in providing access to the Programme should be construed strictly in this facilitator context only.
(d) The Participant’s use of, or reliance on, the Programme, and any third party, is solely at Participant’s own risk.
11. INDEMNITY
The Participant indemnifies, and must continue to indemnify, the Supplier against any liability incurred by the Supplier in respect of damage to property, death or personal injury or any Loss, arising from or in connection with the Participant, its Related Bodies Corporate or any Personnel of those entities doing any of the following:
(a) breaching this Agreement;
(b) breaching any Relevant Law;
(c) infringing any Third Party's Intellectual Property;
(d) uploading or transmitting the Participant Data;
(e) supplying any incomplete, false or misleading information; or
(f) engaging in wilful misconduct, fraud, an unlawful act or omission or negligence,
and any reasonable costs (including legal costs), claims, demands and expenses arising out of, or in connection with, any liability referred to in this clause 11.
12. TERMINATION
12.1. Termination
(a) If the Registration Form specifies that the Participant is entitled to a Trial Period, the Participant may terminate this Agreement (without any liability) at any time prior to the expiry of the Trial Period.
(b) Either party may terminate this Agreement by giving notice with immediate effect if the other party:
(i) commits a breach of any of its material obligations under this Agreement that is not capable of remedy;
(ii) commits a breach of any of its material obligations under this Agreement, and if the breach is capable of remedy, does not remedy that breach within 14 days after receipt of notice of the breach or any further time allowed by the non-defaulting party; or
(iii) suffers an Insolvency Event (and the Corporations Act does not prevent the party from terminating).
(c) Either party may terminate this Agreement by giving notice with immediate effect if a Force Majeure Event continues for more than 30 consecutive days.
12.2. Effect of termination
Upon termination of this Agreement for any reason:
(a) all licences and rights of access granted under this Agreement will immediately terminate;
(b) the Participant must pay within 7 days any outstanding Fees and any other amounts due to the Supplier under this Agreement;
(c) the Participant must immediately destroy, delete or return to the Supplier (at the Supplier's election) all Confidential Information in its possession, custody or control and, in the case of destruction, certify to the Supplier that it has done so; and
(d) the Supplier may destroy, delete or dispose of any Participant Data in its possession unless it receives, no later than 10 days after the effective date of the termination of this Agreement, a written request for the delivery to the Participant of the then most recent back-up of Participant Data. The Supplier will use reasonable endeavours to deliver the back-up to the Participant within 30 days of its receipt of such request, provided that the Participant has, at that time, paid all Fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). The Participant will pay all reasonable expenses incurred by the Supplier in returning or disposing of the Participant Data.
13. DISPUTE RESOLUTION
(a) Before commencing court or tribunal proceedings (except for interlocutory or interim relief), the parties must refer any dispute under or relating to this Agreement to a nominated representative of each party to endeavour to resolve the dispute within 30 days.
(b) If the dispute is not resolved within this period, either party may initiate court or tribunal proceedings.
(c) Each party must continue to perform its obligations under this Agreement during the dispute.
14. FORCE MAJEURE EVENT
The Supplier will have no liability to the Participant or anyone else if the Supplier is prevented from, or delayed in, performing its obligations under this Agreement by a Force Majeure Event.
15. NOTICES
A notice, agreement, consent, approval, direction, waiver, or similar given or required under this Agreement:
(a) must be in writing, in English and signed by, or sent by email from, a person authorised by the sender;
(b) must be delivered to the receiving party in person, by email or registered post to the receiving party's address for notices as agreed by the parties, or in the case of the Participant as otherwise set out in the Registration Form; and
(c) is deemed to be received by the receiving party:
(i) if delivered in person, on delivery;
(ii) if sent by email, when successfully transmitted, unless received after 5pm on a Business Day or any time on a non-Business Day, in which case, it is deemed received at 9am the next Business Day; or
(iii) if posted, 5 Business Days (or 8 Business Days, if posted outside Australia) after the date of posting to the receiving party.
16. GENERAL
16.1. Electronic communication
The parties consent to giving and receiving notices electronically, and this Agreement may be executed and delivered electronically.
16.2 No restraints
This Agreement will not prevent the Supplier from:
(a) entering into the same or similar agreements with Third Parties; or
(b) independently developing, using, selling or licensing documentation, products and/or services which are the same or similar to those provided under this Agreement.
16.3. Approvals and consent
Except as set out in this Agreement, a party may:
(a) give or withhold approval or consent at that party’s discretion; and
(b) give approval or consent subject to conditions.
16.4. No waiver
A waiver of a right, power or remedy must be signed by the party giving it and cannot be implied by conduct, delay or failure to act.
16.5. Assignment
(a) The Participant may not assign or deal with this Agreement except with the prior consent of the Supplier. The Supplier is not required to give consent or justify the withholding of consent.
(b) The Supplier may deal with any of its rights or obligations under this Agreement without the Participant's consent.
16.6. Severability
If any part of this Agreement is or becomes invalid or unenforceable under any Relevant Law, it is severed in the relevant jurisdiction but only to the extent it is invalid or unenforceable.
16.7. No merger
On completion or termination of this Agreement, the rights and obligations of the parties set out in this Agreement will not merge and survive after termination or completion.
16.8. Relationship of the parties
Unless otherwise provided in this Agreement, no party is authorised to bind another party and nothing in this Agreement is to be construed as creating an employment, agency, partnership, fiduciary or joint venture relationship between any of the parties.
16.9. Remedies cumulative
Except as provided in this Agreement and permitted by any Relevant Law, the rights, powers and remedies provided in this Agreement are cumulative with and not exclusive to the rights, powers or remedies provided by any Relevant Law independently of this Agreement.
16.10. Entire agreement
This Agreement constitutes the entire agreement between the parties in relation to, and supersedes any prior conduct, arrangement, agreement or understanding of, its subject matter.
16.11. Costs
Each party must pay its own costs for the negotiation, preparation, execution and performance of this Agreement, unless otherwise set out in this Agreement.
16.12. Counterparts
(a) This Agreement may be executed in counterparts.
(b) All executed counterparts constitute 1 document.
16.13. Governing law and jurisdiction
(a) This Agreement is governed by the laws in force in Victoria, Australia.
(b) Each party irrevocably submits to the exclusive jurisdiction of courts exercising jurisdiction in Victoria, Australia and waives any right to claim that those courts are an inconvenient forum.
17. DEFINITIONS AND INTERPRETATION
17.1. Definitions
Additional Service Proposal has the meaning given in clause 4(b).
Additional Services means services outside the then current scope of the Services.
Agreement means this document, each Registration Form and all documents and policies referred to in this document.
Approval means any approval of a Government Agency, permit, licence, authorisation, registration or similar required under any Relevant Law in connection with this Agreement.
Australian Consumer Law means the Competition and Consumer Act 2010 (Cth) Schedule 2.
Authorised User means a representative of the Participant authorised to access the Programme under a User Licence.
Back-Up Policy means the document that defines the policies and procedures for the Supplier to backup, archive and recover Participant Data and the Programme.
Business Day means a day other than a Saturday, Sunday, or gazetted public holiday in Melbourne, Victoria
Claim means any claim, demand, remedy, suit, action, proceeding, right of action, however arising.
Commencement Date means the date both parties have agreed to enter into this Agreement, being when the Participant agrees to its terms by checking the ‘I ACCEPT’ box.
Confidential Information means all information of a confidential, commercially sensitive or valuable nature, including Intellectual Property of a party, other than information that is public or information previously disclosed to the receiving party on a non-confidential basis.
Consequential Loss means any of the following:
(a) incidental, special, remote or unforeseeable loss or damage;
(b) loss of revenue, profit, income, bargain, opportunity, use, production, business, contract, goodwill, or anticipated savings, loss, damage or corruption of data, loss caused by business interruption, or the cost of obtaining new financing or maintaining existing financing;
(c) costs incurred to prevent or reduce loss or damage which otherwise may be incurred or suffered by a Third Party; or
(d) loss or damage set out above in paragraphs (a) to (c) that is incurred or suffered by or to a Third Party.
Corporations Act means the Corporations Act 2001 (Cth).
Fees means the fees specified in the Registration Form, unless otherwise agreed between the parties.
Force Majeure Event means an act, event, omission or accident beyond a party's reasonable control, including strikes, lock-outs or other industrial disputes, failure of a utility service or transport or telecommunications network, act of God, fire, flood, storm, earthquake, other physical natural disaster or extreme weather conditions, or any other weather conditions which would be expected to place at risk the health or safety of the employees of a party or any other person, sabotage, war, riot, civil commotion, acts of terrorism or hostilities, a quarantine, epidemic, pandemic, outbreak or recurrence of a contagious disease or virus (including COVID-19), or any derivative or mutation of such viruses or disease, or the threat or perceived threat of any of these, computer hacking, malicious damage, compliance with any law or governmental order, rule, regulation or direction, a state of emergency that has been declared by an authority, accident, breakdown of plant or machinery, default of hosting or data centre providers or other suppliers or sub-contractors and shortage of supplies, equipment and materials.
Government Agency means any governmental, judicial or statutory body with authority or jurisdiction over this Agreement or a party.
GST has the meaning given in the GST Act.
GST Act means the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Insolvency Event means in relation to a party, any of the following events or circumstances:
(a) a step taken to enter into an arrangement between the party and its creditors;
(b) a step taken to appoint a receiver, a receiver and manager, a trustee in bankruptcy, a provisional liquidator, a liquidator, an administrator or other like person of the whole or part of that party's assets, operations or business;
(c) the party cannot pay its debts as they become due; or
(d) it ceases to carry on business or indicates it is likely to cease carrying on a business or a material part of its business,
in each case, unless the event or circumstance occurs as part of a solvent reconstruction, amalgamation, scheme, compromise, arrangement, merger or consolidation approved by the other party, not to be unreasonably withheld.
Intellectual Property means the business names, copyright, patents, trade marks, trade names, designs and similar industrial, commercial and intellectual property and all other rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields anywhere in the world, regardless of the form and whether or not registered or registrable.
Loss means any liability, loss, injury, illness, damage, cost or expense, including legal costs on a full indemnity basis and Consequential Loss.
Maintenance Release means a release of the Programme which adds functionality to, or otherwise amends or upgrades, the Programme, but which does not constitute a New Version.
Malware means any virus, worm, trojan, malicious software or code, or similar harmful materials, that is intentionally designed to cause damage, adversely affect, or gain unauthorised access to the network, computer system, software, or electronic data.
New Version means any version of the Programme containing significant differences from previous versions as to be generally accepted as a new product.
Normal Business Hours means 9.00am to 5.00pm each Business Day.
Participant means the person referred to as the user or participant in the Registration Form.
Participant Data means all data, content, works, materials and metadata:
(a) uploaded or submitted to or stored on the Programme, or otherwise made available, by the Participant or an Authorised User;
(b) transmitted by the Programme at the instigation of the Participant or an Authorised User;
(c) supplied by the Programme or an Authorised User to the Supplier for uploading to, transmission by or storage on, or via, the Programme; or
(d) generated by the Programme because of the use of the Services by, or an act or omission of, the Participant or an Authorised User.
Personal Information has the meaning given in the Privacy Act 1988 (Cth).
Personnel means, in relation to a party, its directors, officers, employees, contractors, agents and authorised representatives.
Privacy Act means the Privacy Act 1988 (Cth).
Privacy Laws means all privacy and data protection laws and regulations relating to privacy, data security, cybersecurity and the collection, storage, use and disclosure of Personal Information in any relevant jurisdiction, including the Privacy Act.
Privacy Policy means the Supplier's privacy policy, available at or such other web address notified by the Supplier to the Participant from time to time, which is incorporated into this Agreement.
Programme means:
(a) the downloadable and non-downloadable software operated by the Supplier and promoted by reference to the name ‘TOMORROW MAN TOMORROW WOMAN ONLINE’ or any other name updated from time to time, and used as an online learning portal where users can undertake self-learning courses and engage in online group workshops / facilitations / forums.
(b) the application (for example, front-end assets and back-end source code), database, system and server software, and all Intellectual Property contained in the software referred to in (a) above; and
(c) any Maintenance Releases and New Versions.
Programme Term means the term specified in each Registration Form, unless otherwise agreed between the parties, and includes any Trial Period.
Registration Form means the online form that must be filled in with details including email address, desired username, password and password confirmation, in order to create a User Account.
Related Body Corporate has the meaning in the Corporations Act.
Relevant Law means any law, regulation, mandatory guideline or standard, ordinance, court ruling or requirement or direction of a Government Agency, or similar, in any jurisdiction in which any part of this Agreement is performed, or governing the Services or a party, at any time.
Representative means, in respect of a person, any director, officer, employee, agent, contractor, adviser or Related Body Corporate of or to that person, or any director, officer, employee, agent, contractor or adviser of or to a Related Body Corporate of that person.
Services means:
(a) granting access to the Programme to the Participant in accordance with this Agreement; and
(b) any incidental services provided by the Supplier as it deems necessary to provide.
Supplier means Tomorrow Man Tomorrow Woman Pty Ltd (ACN 627 119 402).
Tax means any tax, levy, charge, impost, duty, fee, deduction, goods and services tax, compulsory loan or withholding, which is assessed, levied, imposed or collected by any Government Agency, including any interest, fine, penalty, charge, fee or any other amount imposed on or in respect of any of the above, including GST.
Term has the meaning in clause 1.
Third Party means a party other than a party to this Agreement.
Third Party Products means any software, product, service, material, information or content (including any related Intellectual Property) provided by a Third Party.
Trial Period has the meaning in clause 7.1(c).
User Licence has the meaning in clause 7.2(a).
17.2. Interpretation
In the interpretation of this Agreement, unless stated otherwise:
(a) a reference to a party is to a party to this Agreement;
(b) a reference to a person includes a natural person or legal entity;
(c) a reference to time is a reference to time in Melbourne, Victoria;
(d) a reference to AUD, $A, dollar or $ is to Australian currency;
(e) if an obligation must be performed or an event must occur on a day that is not a Business Day, the obligation must be performed or the event must occur on or by the next Business Day;
(f) words such as 'including' or 'for example' do not limit the preceding words;
(g) all grammatical forms of defined terms have a corresponding meaning;
(h) a provision of this Agreement must not be construed against a party on the basis that party was responsible for preparing it; and
(i) the main body of this Agreement will prevail to the extent of any inconsistency with any other part of this Agreement.
Last updated: May 2022
