PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY BEFORE ACCESSING OR USING OUR SERVICES.
Subscription Agreement
This Subscription Agreement (Agreement) governs the relationship between Adam Fletcher Enterprises Pty Ltd trading as Integrated Safety Support ABN 14 163 751 059 (ISS, us, we, our) and you, in your capacity as the Subscriber or End User (as the case may be), in relation to our Services.
By:
you agree to the terms of this Agreement. If you are accepting this Agreement on behalf of a Subscriber, you represent and warrant that you are authorised by that Subscriber to agree to the terms of this Agreement on its behalf.
If you do not agree to this Agreement, or you do not have authority to accept this Agreement on behalf of a Subscriber, do not click 'I AGREE' or access or use any of the Services.
1. Definitions
In this Agreement, unless the context otherwise requires:
Add-ons means any goods or services provided by ISS that are outside the scope of the Services or the Subscriber's Subscription Level;
App means a smartphone application made available by ISS to a Subscriber as part of the Services. As at the date of this Agreement, the Apps include:
(a) FatigueSafe, a personal risk assessment and fitness for work assessment tool; and
(b) PeakAlert, a sleep and caffeine consumption tracking tool;
Admin User means a User authorised by the Subscriber to administer the Subscriber's and its Users access and use of the Services;
Business Day means a day that is not a Saturday or Sunday, or a public holiday or bank holiday in Adelaide, South Australia;
Commencement Date means the start date or commencement date (however described) of the Initial Term, as specified in the Order;
Confidential Information of a Discloser means information of or relating to the Discloser, or relating to the business, operations or affairs of the Discloser. It includes:
(a) financial, taxation and accounting matters; and
(b) trade secrets, know-how, technology, techniques, processes, ideas or concepts, and technical and product information, even if not reduced to material form,
and, in the case of ISS, the Services form part of its Confidential Information;
Deferred Fees has the meaning set out in clause 16(b);
Discloser means the party disclosing Confidential Information to the other party;
Documentation means any user guide and other materials related to the Services which are made available to the Subscriber, either in print and/or online or in another format, intended to assist a User to access or use the Services;
Fees means the amounts payable by the Subscriber to ISS for access to and use of the Services, as set out in the Order;
Force Majeure means a circumstance beyond the reasonable control of a party and which results in the party being unable to observe or perform on time an obligation under this Agreement, other than an obligation to pay money. Such circumstances may include:
(a) fire, flood, earthquake, cyclone, or act of God;
(b) riot, civil disorder, rebellion or revolution;
(c) war or terrorist act; or
(d) pandemic, epidemic or other public health emergency,
and other similar causes beyond the reasonable control of the non performing party;
GST means any tax, levy, charge or impost implemented under the GST Act;
GST Act means the A New Tax System (Goods and Services Tax) Act 1999 (Cth) or an Act of the Parliament of the Commonwealth of Australia substantially in the form of, or which has a similar effect to, the GST Act;
GST Amount means an amount equal to the GST payable on the taxable supply, calculated in accordance with the then-current rate of GST;
Intellectual Property Rights includes any copyright, design, patent, trade mark, semiconductor, circuit layout or plant breeder rights (whether registered, unregistered or applied for), trade, business, company or domain name; and know how, inventions, processes, confidential information (whether in writing or recorded in any form); and any other proprietary, licence or personal rights arising from intellectual activity in the business, industrial, scientific or artistic fields;
Invoicing Terms means the invoicing terms set out in the Order;
ISS means Adam Fletcher Enterprises Pty Ltd as trustee for Adam Fletcher Trust trading as Integrated Safety Support ABN 13 861 063 272;
LMS means Learning Management System
Minimum Term means the initial term of the Agreement, which is a period of 12 months from the Commencement Date unless otherwise specified in the Order;
Online Training means the courses made available by ISS to a Subscriber either through the Platform or separately through a SCORM compliant data file accessible on the Subscriber LMS;
Order means the document setting out the commercial terms applicable to the contract between the Subscriber and ISS in relation to the Services;
Payment Terms means the payment terms set out in the Order;
Personal Information has the meaning set out in the Privacy Act;
Platform means the Online Training platform made available by ISS to Subscribers through the URL https://integratedsafety.com.au and the URL https://www.fatiguecourses.com/login/index.php;
Promotional Offers means promotional discounts or benefits associated with the Services;
Privacy Act means the Privacy Act 1988 (Cth) and the Australian Privacy Principles, as amended from time to time;
Privacy Policy means ISS' privacy policy available at URL: https://integratedsafety.com.au/privacy-policy/ , as amended from time to time;
Registration Date means the date that a User signifies their acceptance of the terms and conditions in this Agreement by first accessing or using the Services;
Renewal Term means a further period equal to the Minimum Term;
Services means the Online Training Courses, the Platform, the Apps, and the Support Services, and any other services that ISS may introduce to its clients from time to time;
Subscriber means the entity specified in the Order, who has authorised a User to access and use the Services from time to time;
Subscriber LMS means a Subscriber's learning management system hosted on the Subscriber Hosting Infrastructure;
Subscriber Hosting Infrastructure means the hardware, software, communications services and other resources, services and facilities necessary or desirable for the hosting of the Subscriber LMS;
Subscription Level means the licensing option for the Services selected by the Subscriber as described in the Order;
Support Service means the technical support services provided by ISS in relation to the Platform and the Apps, and includes answering Subscriber's or Users' questions regarding the Services, providing assistance with onboarding the Subscriber and its Users to the Services, and troubleshooting or upgrading the Services, but specifically excluding any project works or material configurations or modifications to the Services;
Support Service Hours means the number of hours allocated on an annual basis for the provision of Support Services to the Subscriber and its Users;
Tax Invoice has the meaning under the GST Act;
Term means the term of this Agreement, including the Minimum Term and any Renewal Term;
Third Party Product means any product or service that is supplied to the User or the Subscriber by or on behalf of a third party;
User means an employee, agent, contractor or personnel of a Subscriber who is authorised by the Subscriber to use the Services;
User Account means a User's account enabling access and use of the Services; and
User Data means any data that the User or the Subscriber inputs into the Services.
2. Grant of licence
In return for the payment of the Fees, ISS grants to:
(a) the Subscriber, and the Subscriber accepts, a non-transferable, non-exclusive licence; and
(b) a User of the Subscriber, and the User accepts, a non-transferable, non-exclusive, non-sublicensable licence,
to access and use the Services for the purposes specified in the Documentation on the terms and conditions contained in this Agreement and the Order.
3. Term
(a) The licence granted under this Agreement to:
(i) the Subscriber begins on the Commencement Date; or
(ii) the User begins on the Registration Date,
and continues for Term unless terminated earlier in accordance with this Agreement.
(b) Unless otherwise specified in the Order, the Term will automatically renew for each successive Renewal Term, unless either ISS or the Subscriber gives notice to the other party at least 30 days prior to the end of the Minimum Term (or the then-current Renewal Term) of its intention not to renew this Agreement.
4. Subscription Level
(a) ISS will provide the Subscriber with access and use of the Services in accordance with the Subscription Level as selected by the Subscriber. The Subscriber's selected Subscription Level will limit:
(i) the number of Users that the Subscriber may authorise to access and use the Services during the Term; and
(ii) the number of Support Service Hours.
(b) The Subscriber may purchase other subscriptions from ISS from time to time.
(c) Unless otherwise agreed by ISS, any subscription purchased following the formation of this Agreement:
(i) will be subject to a contract separate from this Agreement; and
(ii) will not have any effect on the Subscription Level selected by the Subscriber.
For example, the Subscriber may hold multiple subscriptions of varying Subscription Levels from time to time, which are subject to different contracts with ISS.
5. Add-ons
The Subscriber may request, and ISS may agree to provide, any Add-ons from time to time. The provision of such Add-ons will be subject to terms and conditions separate to this Agreement.
6. User Accounts
(a) The Subscriber may authorise Users to access and use the Services by authorising its Admin User to either:
(i) register each authorised person as a User; or
(ii) send an invitation link through the Services to the nominated person to register as a User.
(b) Upon registration, each User will be allocated a User Account and required to provide a password for secure access to the relevant User Account.
(c) Each User Account will be valid for the Term. Where a User leaves the employment with the Subscriber or the Subscriber otherwise ends its engagement with the User:
(i) the Subscriber may remove the User's access to the User Account through the Admin User; and
(ii) the Subscriber acknowledges and agrees that the User Account may not be re-allocated to another person.
(d) Each User will:
(i) not provide another person's first name or email address to register for a User Account;
(ii) keep the password secure and confidential;
(iii) be responsible for any access and use of the Services through the relevant User Account, including any unauthorised access or use of the User Account;
(iv) not allow another person to use the relevant User Account; and
(v) notify the Admin User and/or ISS if the User becomes aware that there is or has been an unauthorised access or use of the relevant User Account, or any other security breach relating to the relevant User Account.
(e) The Subscriber will be liable for its Users access and use of the Services, including their compliance with the terms and conditions of this Agreement.
7. Support Service Hours
(a) ISS will provide the Support Services to the Subscriber and its Users during the Term.
(b) The Support Service Hours are a block of hours that the Subscriber and its Users may consume, and that ISS will apply to each provision of Support Services, during each billing period. ISS will charge the Support Services against the Support Service Hours in 15-minute increments.
(c) Any Support Services requested that exceed the Support Service Hours will be charged separately on a time and materials basis at ISS's then-current standard rates.
(d) Any remaining unconsumed Support Service Hours at the end of a billing period will expire. For example, if there are any Support Service Hours remaining at the end of a 12-month billing period will not roll over to the following 12-month billing period, and the Subscriber will forfeit any use of those Support Service Hours.
(e) Any remaining unconsumed Support Service Hours at the end of the Term will expire, and ISS will have no further obligations to the Subscriber or its Users in relation to such remaining unconsumed Support Service Hours.
8. Subscriber LMS
(a) This clause only applies if ISS has agreed to supply the Online Training Courses through the Subscriber LMS.
(b) The Subscriber will ensure that:
(i) the Subscriber Hosting Infrastructure that will be used to host the Subscriber LMS; and
(ii) the Subscriber LMS through which the Online Training Courses will be accessed through, comply with appropriate technical, administrative and security measures to ensure against:
(iii) misuse, interference, loss, unauthorised access, modification or disclosure of the Online Training Courses;
(iv) unauthorized access or use of the Online Training Courses; or
(v) unauthorized access to information in the Online Training Courses.
(c) The Subscriber will:
(i) only access and use the Online Training Courses through the Subscriber LMS notified to ISS as at the Commencement Date;
(ii) not transfer the Online Training Courses to another Subscriber LMS without the prior written consent of ISS;
(iii) not allow the Services to be used by, or disclosed to, any person other than the Users;
(iv) not reallocate a User Account to any person other than the person registered for that User; and
(v) not permit access to or use of the Services in excess of the number of Users authorised under its selected Subscription Level.
9. Acceptable Use
The Subscriber, and each User:
(a) must not use the Services, or add any information or material to the Services, or alter any information or material on the Services:
(i) unless the User hold all necessary rights, licences, permits, and consents to do so;
(ii) that would result in a breach of any law, regulation, rule, code or other legal obligation (including any consumer protection legislation or the Privacy Act);
(iii) that is or could reasonably be considered to be contrary to prevailing public standards or obscene, inappropriate, defamatory, disparaging, indecent, seditious, offensive, pornographic, threatening, abusive, liable to incite racial hatred, discriminatory, blasphemous, in breach of confidence, or in breach of any obligation relating to privacy;
(iv) that infringes the rights of any person, including any Intellectual Property Rights;
(v) that is false, misleading, deceptive, or inaccurate; and
(vi) that would or may bring ISS or the Platform into disrepute;
(b) must not:
(i) access or interact with the Services through the use of a robot, spider, scraper or other automated means;
(ii) cause or allow any part of the Services or its features or functionality, or information or materials contained on or obtained from or through the Services, to be reverse-engineered, disassembled or de-compiled, or used (except as expressly authorised in this Agreement);
(iii) allow the Services to be used by, or disclosed to, any other person;
(iv) disclose to or allow any other person to access or use any password or other means of access control relating to the Services;
(v) provide access to any part of the Services to third parties (for example, as a service bureau platform);
(vi) sell, resell, license or sublicense access to the Services, or archive, modify, reproduce, redistribute, display, perform, publish, license, create derivative works from, offer for sale to any person, or frame or mirror the Platform or any part of it;
(vii) access or use the Services in order to build a product or service that competes with the Services or any feature or function of the Services, or to copy any feature or function of the Services;
(viii) circumvent, remove, amend, deactivate, degrade or thwart any security protections on the Services, or attempt to do so;
(ix) introduce any malicious code or damaging content, information or material to the Services, or otherwise send or transmit any content, information or material that is designed to, or that has the effect of, interrupting, destroying or limiting the Services' functionality or ISS's or a third party's computing systems or networks;
(x) interfere with or disrupt access to or use of the Services by anyone authorised by ISS;
(xi) remove or alter any of ISS's Intellectual Property Rights notices embedded in or accessible on the Services; or
(xii) use the Services to communicate unsolicited direct marketing communications.
The Subscriber and each User acknowledges and agrees that ISS is under no obligation to monitor any information or material, including any User Data, which Users transmit or otherwise makes available through the Services, however ISS has the right to remove any information or material, including User Data, from the Services at any time in its sole discretion.
10. User Data
(a) The Subscriber and each User is responsible for:
(i) any access to or use of the Services and access to User Data, that occurs using any User Account, or other means of access control for the Services that has been allocated or relates to the User (whether or not authorised by the User);
(ii) ensuring and maintaining the accuracy, completeness and legality of its User Data;
(iii) the legality of the means by which the User acquired its User Data;
(iv) ensuring that the User Data and its means of acquisition do not infringe the rights, including Intellectual Property Rights, of any third party;
(v) effecting and maintaining appropriate security measures to secure its, and the Subscriber's, access to and use of the Services, and to prevent any unauthorised access to or use of the Services or to the User Data when at rest at the User's or the Subscriber's systems or in transit between the User's or the Subscriber' systems and the Services; and
(vi) promptly notifying ISS of any breach of security or any unauthorised access to or use of the Services or User Data (regardless of the cause of such breach or unauthorised access or use).
(b) Despite any other provisions of this Agreement, the User acknowledges and agrees that ISS:
(i) collect, uses, stores and otherwise handles Personal Information incorporated into or subsisting in the User Data, including such data regarding the User's usage of the Services, for the purpose of providing the Services; and
(ii) may use such User Data to aggregate anonymised or de-identified data for the purposes of developing or creating potential improvements to, or providing the relevant functionality of, the Services and for developing or creating analytics (collectively, Analytics). As between the User and ISS, ISS will own all right, title and interest in and to such Analytics and the Intellectual Property Rights relating to them, and such Analytics are ISS's Confidential Information.
11. Disclaimer
(a) Each User has control over the information given to us, specifically in relation to User Data.
(b) The Subscriber and each User acknowledge and agree that the accuracy and reliability of any insights generated through the Services, in particular through the Platforms or the Apps, are wholly dependent on the quality of the User Data provided in using the Services, and the Subscriber and each User warrants that the User Data is true, accurate or complete and the Subscriber and each User will use their best endeavours to keep such information true, accurate or complete and up to date.
(c) Any insights generated through the Services are provided as a general guide only, and are based on Analytics. The Subscriber and each User acknowledges and agrees that such insights:
(i) do not take into account all factors that may affect a User at any time (including external factors, such as changes to a person's activities or fitness);
(ii) are not medical evaluations for health assessment purposes; and
(iii) does not comprise personal advice and does not take into account a User's personal needs and circumstances.
(d) The Subscriber and each User must carry out their own investigations and make their own assessments with respect to the value of any insights generated through the Services.
(e) ISS is not responsible for the accuracy of the Analytics or insights generated through the Services, and makes no warranties that the Analytics or insights generated through the Services are accurate, complete or correct. ISS disclaims all responsibility and all liability (including liability for negligence) for all expenses, losses, damages and costs the Subscriber or any User might incur as a result of the Analytics or insights generated through the Services being inaccurate, incomplete or incorrect in any way.
12. Interaction with Third Party Products
If the User uses the Services in conjunction with any Third Party Products, the User acknowledges and agrees that:
(a) any issues relating to the User's access to and use of those Third Party Products, or relating to any exchange of instructions, data or information between the Subscriber and the third party or the Third Party Product, are solely between the User and the applicable third party and are not matters for which ISS is responsible or liable;
(b) ISS does not warrant or support any Third Party Products or any interface between them and the Services; and
(c) ISS is not liable for any disclosure, modification or deletion of User Data or Personal Information resulting from access to or use of those Third Party Products or any exchange of data with them.
13. Modifications to the Services
ISS may modify the Services, including to add or remove features and functionality from time to time, and any changes will be communicated to the Subscriber and its User through the Services.
14. Fees
(a) The Subscriber will pay the Fees specified in (or calculated in accordance with) the Order to ISS, at the times specified in the Order.
(b) ISS may also charge, and the Subscriber will pay to ISS, any costs, expenses, charges or other payments in addition to the Fees, including any excess usage charges.
(c) ISS will issue a Tax Invoice for all Fees payable by the Subscriber in accordance with the Invoicing Terms.
(d) Subject to clause 15, the Subscriber will pay each Tax Invoice in accordance with the Payment Terms. ISS will give the Subscriber and its Users access to the Services on full payment of the Fees in cleared funds.
(e) If the Subscriber does not pay any invoiced amount by the due date for payment, then without prejudice to ISS's rights under this Agreement or generally:
(i) interest is also payable on the outstanding amount at the rate prescribed from time to time under Section 2 of the Penalty Interest Rates Act 1983 (Vic). The Subscriber must pay that interest at the same time as the outstanding amount; and
(ii) by written notice to the Subscriber, ISS may suspend the Subscriber' (and the User's) access to the Platform until the Subscriber pays the outstanding invoice and interest in full.
15. Disputed amount
(a) If the Subscriber disputes in good faith any item on a Tax Invoice, the Subscriber will promptly (but no later than seven (7) days after the date of the Tax Invoice) notify ISS of the disputed amounts in the Tax Invoice and its reasons for disputing the items to which the disputed amounts relate in the Tax Invoice.
The Subscriber must also pay to ISS the Tax Invoice in its entirety in accordance with the Payment Terms, and the disputed portion will be dealt with in accordance with the following provisions of this clause 15.
(b) ISS and the Subscriber will use all reasonable endeavours to settle the dispute at their earliest possible convenience in accordance with clause 26.
(c) If the dispute is resolved and the parties agree, or if it is determined by a court of law that any portion of the dispute amount was not payable by the Subscriber, then ISS will repay that portion to the Subscriber within seven (7) days of resolution of the dispute (unless the Subscriber is indebted to ISS, in which case ISS may set the amount payable to the Subscriber off against that amount).
(d) If the Subscriber does not notify ISS of a dispute in respect of an invoiced amount within the time frame specified in clause 15(a), the Tax Invoice will be deemed to be undisputed.
16. Changes to Fees
(a) Subject to clause 16(b) and clause 16(c), the Fee amounts will remain fixed until the expiry of the Minimum Term.
(b) ISS may in its sole discretion increase the Fee by giving the Subscriber written notice of the proposed change at least 30 days prior to the expiry of the Minimum Term or the then-current Renewal Term. Unless the Subscriber terminates the Agreement before the expiry of the Minimum Term or the then-current Renewal Term by giving prior written notice to ISS, the revised Fee will apply to the Subscriber's continued access and use of the Services from the commencement of the Renewal Term immediately preceding the notice. The Fee (as revised) will remain fixed during that Renewal Term.
(c) Unless ISS issues a notice in accordance with clause 16(b), the Subscriber acknowledges and agrees that, unless otherwise waived in writing by ISS, the Fee amounts will automatically be increased by 3% on each anniversary of Commencement Date(Annual Increase), provided however, payment of the sum of the total Annual Increase(s) applicable to that Fee amount(s) will be deferred so as to become due and payable on the earlier of:
(i) the date of expiry of the Term; and
(ii) the date of termination of this Agreement,
(Deferred Fees). Unless the Subscriber terminates access to the Services under this Agreement or gives notice of its intention not to renew the Term in accordance with clause 3(b), the revised Fee will apply to the Subscriber's continued access to and use of the Services from the commencement of any Renewal Term. The Fee (as revised) will remain fixed during that Renewal Term.
17. Promotional Offers
From time to time, ISS may offer the Subscriber access to Promotional Offers. These Promotional Offers are subject to terms separate from the terms of this Agreement. To the extent there is any conflict between the terms of any Promotional Offer entered into between the parties and the terms of this Agreement, the terms contained in such Promotional Offer will prevail unless otherwise specified in such Promotional Offer.
18. GST
(a) If GST is payable on any supply made under or in relation to this Agreement, the recipient of the supply must pay the GST Amount to the supplier in addition to and at the same time as the net amount payable for the supply.
(b) If a party is required to make any payment or reimbursement, that payment or reimbursement must be reduced by the amount of any input tax credits or reduced input tax credits to which the other party (or the representative member for a GST group of which it is a member) is entitled, for any acquisition relating to that payment or reimbursement.
(c) This clause is subject to any other specific agreement regarding the payment of GST on supplies.
19. Intellectual Property Rights
(a) Nothing in this Agreement affects either party's ownership of their respective Intellectual Property Rights. To avoid doubt:
(i) ISS retains all right, title and interest in the Services and Analytics; and
(ii) the Subscriber retains all right, title and interest in the User Data.
(b) Any rights that are not expressly granted to the Subscriber in these terms are expressly reserved by ISS.
(c) The Subscriber grants to ISS:
(i) a non-exclusive, royalty-free, worldwide licence to use (and allow ISS' personnel to use) the User Data for the purposes of performing its obligations under this Agreement, to further develop and make improvements to the Services, and to create, develop, manage, and commercialise any Analytics; and
(ii) a non-exclusive, royalty-free, worldwide, licence to use the Subscriber's business names for the purposes of advertising and promoting the Services, provided that:
(A) the use is compliant with any reasonable guidelines that the Subscriber may notify in writing to ISS from time to time;
(B) the business names will remain the property of the Subscriber; and
(C) the use of the business names under this Agreement is as licensee only, and any goodwill arising from that use, will accrue solely for the Subscriber's benefit.
(d) Nothing in this Agreement will prevent or restrict ISS from using any technique, design, concept, know-how, or materials relating to ISS or its business activities related to the Services for any purpose.
(e) If the Subscriber provides any suggestions, enhancement requests, recommendations, or other feedback to ISS regarding the Services or any of ISS's other products or services (Feedback), ISS may freely act upon and use, and may incorporate such Feedback into the Services or other products and services without restriction or payment, and the rights (including any Intellectual Property Rights) arising from ISS's doing so will be ISS's property, without any obligation to pay the Subscriber for the Feedback.
20. Confidentiality
Each party acknowledges the confidentiality of the other party’s Confidential Information. Neither party will gain a right, entitlement or interest in the other party’s Confidential Information, other than for the purposes contemplated by this Agreement. Each party must keep all of the other party’s Confidential Information confidential, and may only use it for the purposes of fulfilling this Agreement. However, this will not apply to information which:
(a) was in the public domain when it was provided, or later enters the public domain, through no fault of the other party; or
(b) the party is obliged by law to disclose, provided that it has first advised the other party of this obligation.
21. Privacy
In performing this Agreement:
(a) the Subscriber will comply with, and will ensure that each User complies with, the Privacy Act in relation to its access to and use of the Services, and its collection, inputting into the Services, storage and use of User Data;
(b) the Subscriber must ensure that it obtains valid consents from all individuals whose Personal Information forms part of any data that is provided to ISS or used on the Services, to the disclosure to, and access, use, disclosure, storage and handling of the data by ISS in accordance with this Agreement; and
(c) ISS will:
(i) comply with all Privacy Laws applicable to it in respect of any Personal Information collected, accessed, used, disclosed, stored and otherwise handled by ISS under or in connection with this Agreement; and
(ii) otherwise collect, access, use, disclose, store or otherwise handle Personal Information in accordance with its Privacy Policy (as amended from time to time).
22. Warranty
(a) The Subscriber and each User acknowledges and agrees that the Services cannot be guaranteed error-free, and that the existence of any error does not amount to a breach of this Agreement, or of any other agreement between the Subscriber and ISS.
(b) Despite clause 22(a), ISS warrants that the Services as licensed under properly accessed and used, will materially comply with the specifications set out in the Documentation.
(c) ISS warrants to the Subscriber that ISS the right to grant the licences referred to in this Agreement, and that the Subscriber's and each User's access and use of the Services in accordance with this Agreement will not, to the best of ISS's knowledge, infringe the Intellectual Property Rights of any third party in Australia.
(d) On becoming aware of any claim or allegation by a third party against the Subscriber alleging that an authorised use by the Subscriber or a User of the Services in Australia infringes the Intellectual Property Rights of that third party, the Subscriber must:
(i) promptly notify ISS in writing, giving full particulars of any infringement, suspected infringement or alleged infringement;
(ii) give ISS the option to conduct the defence of such a claim, including negotiations for settlement or compromise prior to or after the institution of legal proceedings;
(iii) provide ISS in conducting the defence of such a claim;
(iv) authorise ISS to:
(A) modify the Services or replace components or parts of components, to render the Services non-infringing; or
(B) obtain for the Subscriber benefit the authority to continue the access and use of the Services,
however, if neither of the above can be achieved using reasonable commercial efforts, ISS may terminate this Agreement (or the relevant part of it) by written notice to that effect.
(e) ISS's liability under clause 22(c) does not apply where the infringement is caused or contributed to by:
(i) the use by the User or the Subscriber of the Services in a manner which is inconsistent with the rights granted under this Agreement, or with any documentation or written operating instructions or guidelines provided by or on behalf of ISS;
(ii) ISS's compliance in the course of provision of the Services with specifications or written instructions issued to ISS by the Subscriber; or
(iii) the combination of the Services with any materials that is not supplied by or on behalf of ISS; or
(iv) any Third Party Product; or
(v) data that is provided to ISS or that is used on the Services by the Subscriber or the User.
(f) Except for the express warranties contained in this Agreement, to the extent permitted by the law, ISS expressly exclude all conditions and warranties, whether express or implied, statutory or otherwise.
(g) To the maximum extent permitted by law, the warranties specified in this Agreement do not apply to use of the Services other than in the normal and customary manner for the purposes for which it is designed.
23. Indemnity
Each of the Subscriber and the User hereby indemnifies ISS, and will keep ISS indemnified, from and against all claims, costs, expenses, damage and loss arising from or in connection with:
(a) the Subscriber's or a User's breach of any provision of this Agreement;
or
(b) the Subscriber's or a User's acts or omissions in relation to the Services or this Agreement.
24. Liability
(a) ISS's liability arising out of or in connection with this Agreement whether in contract, equity, negligence, tort or for breach of statute or otherwise), including under a warranty or indemnity, will be reduced by the extent, if any, to which the Subscriber's or any User’s wrongful, unlawful or negligent act or omission caused or contributed to the liability.
(b) ISS will not be liable to the User or the Subscriber for any indirect, consequential, special, punitive, exemplary or incidental damages of any kind, or loss of data, opportunity, reputation or profits, however caused, arising out of or in connection to these terms or the Services, even if it has been advised of the possibility of those damages.
(c) To the fullest extent permitted by law, ISS's total aggregate liability under this Agreement to the Subscriber (whether under statute, in contract or in tort, including for negligence, or otherwise) for liability suffered or incurred by the User in connection with this Agreement is limited to the amount equal to the amounts actually paid by the Subscriber to ISS in the three (3) months immediately preceding the event giving rise to the liability in respect of the Services which gave rise to the liability in question.
(d) The Subscriber must use all reasonable endeavours to mitigate its liability.
25. Australian Consumer Law
The Australian Consumer Law (ACL) in the Competition and Consumer Act 2010 (Cth) and other similar consumer protection laws and regulations may imply certain rights, consumer guarantees, warranties and remedies relating to the Platform which cannot be excluded, restricted, qualified or modified by us (Non-Excludable Rights). Nothing in this Agreement excludes or attempts to exclude the Subscriber's Non-Excludable Rights as a consumer under the ACL.
26. Dispute Resolution
(a) A party claiming that a dispute has arisen out of or in connection with this Agreement must as soon as reasonably practicable give notice to the other party specifying the nature of the dispute and the parties will submit themselves to the dispute resolution procedure set out in this clause 26.
(b) When a dispute arises between the parties in relation to this Agreement, then the parties will attempt to resolve the dispute between themselves in good faith, and each party will do anything (including executing any document) reasonably required to give effect to the agreed resolution of the dispute.
27. Suspension and Termination
(a) Without limiting ISS's rights in respect of the default, ISS may suspend the Subscriber's and each User's access to or use of the Services in the following circumstances:
(i) the Subscriber fails to pay any Fee when due; and
(ii) any use of the Services in breach of this Agreement by the Subscriber or any User that in ISS's sole discretion threatens the security, integrity or availability of the Services, however ISS will use commercially reasonable efforts under the circumstances to provide the Subscriber with notice and an opportunity to remedy such violation or threat prior to any such suspension.
(b) ISS may terminate this Agreement if:
(i) the Subscriber or a User breaches any terms and conditions of this Agreement that is capable of remedy, and the Subscriber does not remedy that breach within 30 days from the date of ISS's notice to do so;
(ii) the Subscriber or a User breaches any terms and conditions of this Agreement that is not capable of remedy; or
(iii) a User's or the Subscriber' access to and use of the Platform has been suspended for more than 30 days.
(c) the Subscriber may terminate this Agreement:
(i) if ISS breaches any material terms and conditions of this Agreement and ISS does not remedy that breach within 30 days from the date of the Subscriber's notice to do so; or
(ii) for convenience on not less than 30 days written notice to ISS.
(d) On expiry or termination of this Agreement for any reason:
(i) such termination is without prejudice to any rights or liabilities of the parties accruing as at the date of termination;
(ii) the Subscriber will pay ISS:
(A) the Fee payable up to and including the date of termination, including any Deferred Fees; and
(B) if ISS terminates this Agreement pursuant to clause 27(b) or the Subscriber terminates this Agreement pursuant to clause 27(c)(ii):
(1) an early termination charge equivalent to the sum of the Fee that would have been payable by the Subscriber for the balance of the Term, as set out in the Order (or extension period), but for the termination of this Agreement (including any future Deferred Fees);
(2) for any costs incurred or suffered by ISS arising from or in connection with the termination, including a reasonable sum for administrative charges and any costs that cannot be cancelled, refunded or mitigated despite ISS using reasonable endeavours to mitigate its cost.
The Subscriber acknowledges and agrees that the payment of the amount calculated under this clause 27(d)(ii)(B) is a genuine pre-estimate of loss that is likely to be sustained by ISS arising from the termination;
(iii) the Subscriber must (at ISS' direction) promptly return or delete all copies of any materials (including the Documentation and any Confidential Information) provided by ISS, or which are records kept by the Subscriber associated with the Order;
and
(iv) without limiting clause 27(d)(iii), if clause 8 applies, the Subscriber must (at ISS' direction) promptly return or delete all copies of any SCORM-compliant data files provided by ISS in relation to the Online Training Courses.
28. General
(a) (Force Majeure Event) Neither party will be liable for any delay or failure to perform its obligations pursuant to this Agreement if such delay is due to a Force Majeure Event and the affected party continuously takes all commercially reasonable steps to overcome and minimise the effects of the Force Majeure Event on its performance of its obligations under this Agreement, and uses its best endeavours to resume performance as soon as reasonably practicable. This clause does not apply to an obligation to pay any money. If a delay or failure by a party to perform its obligations due to a Force Majeure Event exceeds 90 days, ISS may terminate this Agreement and the licences under it by written notice to the Subscriber.
(b) (Assignment) The Subscriber must not transfer any right or liability under this Agreement or assign this Agreement without the prior consent of ISS. ISS may assign this Agreement to a third party without the prior written consent of the Subscriber.
(c) (Amendments) ISS may, at any time and at its sole discretion, vary this Agreement by publishing the varied terms on the Platform and/or ISS's website. ISS recommends that the User checks the Platform and/or website regularly to ensure that the User are aware of ISS's current Agreement. If the User does not agree to ISS's varied terms, the User may terminate the Agreement by sending a written notice to ISS and clause 27(d)(ii)(B) will apply. Continuing to use the Platform will be confirmation of the User's agreement to the varied Agreement.
(d) (Severability) If any clause or part of any clause is in any way unenforceable, invalid or illegal, it is to be read down so as to be enforceable, valid and legal. If this is not possible, the clause (or where possible, the offending part) is to be severed from this Agreement without affecting the enforceability, validity or legality of the remaining clauses (or parts of those clauses) which will continue in full force and effect.
(e) (Notices) Unless otherwise stated in this Agreement, all notices required by this Agreement must be in writing and sent by email to the email address of the relevant party specified in the Order or notified in writing by the party. Any notice sent by email will be treated as served on delivery.
(f) (Waiver) A right created by this Agreement cannot be waived except in writing signed by the party entitled to that right. Delay by a party in exercising a right does not constitute a waiver of that right, nor will a waiver (either wholly or in part) by a party of a right operate as a subsequent waiver of the same right or of any other right of that party.
(g) (Survival) Clauses 11, 14, 17, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28 and all other provisions that, by their nature, are intended to survive the termination or expiry of this Agreement, will survive the termination or expiry of this Agreement.
(h) (Rules of Interpretation) The terms of this Agreement and the Order are not to be interpreted against the interests of ISS merely because ISS proposed this Agreement or the Order or some provision in them, or because ISS relies on a provision of the document to protect itself.
(i) (Jurisdiction) This Agreement is governed by the laws of South Australia, Australia and the parties hereby agree to submit to the non-exclusive jurisdiction of the courts in South Australia, Australia and its appellate courts.
Last updated on 01/08/2021.
