Sale Agreement –Licence terms and conditions

Terms and Conditions

1.      Effect of Terms

(a)      These terms and conditions (Terms) govern the terms on which you may download and use this Content and constitute a binding contract between the Content Provider that has made the Content available on the Platform and you (if you are downloading the Content as an individual) or the entity you are employed by or represent (if you are downloading the Content as a business entity).

(b)      If you are agreeing to these Terms on behalf of a business entity, you represent to the Content Provider that you have legal authority to bind that entity.

(c)      As used in these Terms, “you” means the individual or business referenced above.

(d)      By downloading the Content, you agree to be bound by the terms set out below, together with the Website Terms and the Platform Provider’s Policies each of which are incorporated by reference into these Terms.

2.      Grant of Licence

2.1    Licence

In consideration for your payment of the Download Fee, the Content Provider grants to you a non-exclusive and non-transferrable licence to use the Content solely on these Terms (Licence).

2.2    Restrictions

Except as expressly set out in these Terms or as permitted by law, you undertake:

(a)      not to copy the Content, except where such copying is incidental to normal use of the Content or where it is necessary for the purpose of back-up or operational security;

(b)      not to sell, transfer, rent, lease, sub-license, loan, translate, merge, adapt, vary, alter or modify, the whole or any part of the Content nor permit the Content or any part of it to be combined with, or become incorporated in, any other training materials or similar products; and

(c)      to use the Content only for the purpose for which it has been developed.

3.      Intellectual Property Rights

You agree and acknowledge that:

(a)      the Intellectual Property Rights in the Content shall remain the property of the Content Provider, and the Content Provider reserves the right to grant a licence to use the Content to any other party or parties;

(b)      the Customer must do all things that the Content Provider reasonably requires to perfect the Content Provider’s right, title and interest in and to the Intellectual Property Rights in the Content; and

(c)      the Customer shall use reasonable endeavours to prevent any infringement of the Content Provider’s Intellectual Property Rights in the Content and shall promptly report to the Content Provider any such infringement that comes to its attention.

4.      Termination of Licence

4.1    Termination

The Content Provider may at any time terminate the Licence with immediate effect by giving written notice to you if:

(a)      any part of the Download Fee is not paid or is subsequently reversed, or refunded to you;

(b)      you commit a material breach of these Terms and (if such breach is remediable) you fail to remedy that breach within a period of 14 days after being notified in writing to do so;

(c)      you repeatedly breach these Terms in such a manner as to reasonably justify the opinion that your conduct is inconsistent with you having the intention or ability to give effect to these Terms; or

(d)      you suffer an Insolvency Event.

4.2    Obligations on termination of Licence

On termination or expiry of the Licence, you must as soon as reasonably practicable:

(a)      permanently delete any Content from your IT network or its storage devices; and

(b)      cease all further use of the Content, whether in tangible or intangible form,

provided that if you are required by any law, regulation, or government or regulatory body to retain any documents or materials containing the Content, you must notify the Content Provider in writing of such retention, giving details of the documents and/or materials that you must retain.

5.      Confidentiality

5.1    Information to be kept confidential

(a)      Each party agrees to, and shall ensure each of its officers, employees and contractors:

(i)       hold in strict confidence all Confidential Information of the other party;

(ii)      use the Confidential Information solely to perform or to exercise its rights under these Terms;

(iii)     not transfer, display, convey or otherwise disclose or make available all or any part of such Confidential Information to any third party; and

(iv)     use its best endeavours, including keeping such information in a safe place and implementing adequate security measures, to ensure that all Confidential Information is secure from unauthorised use, disclosure or copying by third parties.

(b)      The obligations in clause 5.1(a) do not apply:

(i)       to the extent necessary to enable disclosure required by law;

(ii)      to any disclosure agreed in writing between the parties; or

(iii)     where the Confidential Information has entered the public domain other than as a result of a breach by the Customer of these Terms.

6.      Warranties and indemnities

6.1    Intellectual Property Rights

(a)      The Content Provider warrants that it has the right and authority to provide you with the rights described in clause 2.1.

(b)      The Content Provider warrants that your use of the Content in the manner permitted under these Terms will not infringe the Intellectual Property Rights of any third parties.

6.2    Content Warranties

(a)      You acknowledge and agree that, subject to any rights and obligations you and the Content Provider have at law, neither the Content Provider nor the owner or operator of the Platform has any obligation to review the Content for accuracy, compliance with applicable laws, regulations or industry standards and the Content is provided solely on an “as is basis”.  You should ensure that you have satisfied yourself that the Content meets the needs for which you intend to use the Content and remains correct and up to date.

(b)      To the extent permitted by law, all conditions, warranties, guarantees, rights and remedies are excluded, except as specifically provided for in these Terms.

6.3    Your warranty and indemnity

(a)      You warrant and represent that you will not use the Content in a manner which infringes the rights of any other person or breaches any applicable law or regulation.

(b)      You indemnify the Content Provider in respect of any loss or damage incurred by the Content Provider as a result of any breach by you of your obligations under these Terms or as a result of any use of the Content.

6.4    Limitation of Liability

(a)      Subject to clause 6.4(b) and to the maximum extent permitted by law, the Content Provider’s liability to you is limited, in the aggregate, to an amount equal to the Download Fee.

(b)      Nothing in these Terms is intended to exclude, restrict or modify any right or remedy you have in statute or otherwise to the extent that right to remedy cannot be excluded, restricted or modified under law. To the fullest extent permitted by law, the Content Provider’s liability under any such non-excludable right or remedy is limited, at the Content Provider’s option, to:

(i)       resupply of the Content; or

(ii)      the Download Fee for that Content.

6.5    Mitigation

Each party must mitigate any loss it suffers as a result of the breach by the other party to these Terms or any warranty or indemnity provided under these Terms.

6.6    Consequential Loss

Notwithstanding any other provision of these Terms, neither party will be liable to the other or any other person for any Consequential Loss.

7.      Force Majeure

Neither party shall be liable for any delay or failure to perform its obligations pursuant to these Terms if such delay is due to an event of force majeure.

8.      Dispute Resolution

(a)      Any dispute between the parties arising under these Terms will be referred in the first instance to the managing directors of each party (or if not applicable a senior person in any business entity), who will attempt to settle the dispute between themselves (acting in good faith) within 7 days.

(b)      If the dispute is not resolved under clause 8(a), then either party may refer the dispute to an appropriate court in accordance with clause 9.2.

9.      General

9.1    Amendments

These Terms may only be amended by written agreement between the parties.

9.2    Governing law and jurisdiction

The laws of Queensland govern these Terms and each party irrevocably submits to the non-exclusive jurisdiction of the courts of Queensland and courts competent to hear appeals from those courts.

9.3    Assignment

(a)      You may not assign, in whole or in part any of your rights and obligations under these Terms without the prior written consent of the Content Provider.

(b)      The Content Provider may assign, in whole or in part any of its rights and obligations under these Terms by giving you written notice.

9.4    Severability

A clause or part of a clause of these Terms that is illegal or unenforceable may be severed from these Terms and the remaining clauses or parts of the clause of these Terms continue in force.

9.5    Entire agreement

These Terms supersede all previous agreements about its subject matter and embody the entire agreement between the parties.

9.6    Further assurances

Each party must do all things reasonably necessary to give effect to these Terms and the transactions contemplated by it.

9.7    Costs

Each party bears its own costs in relation to the preparation and review of these Terms.

9.8    No waiver

(a)      The failure by the Content Provider to require full or partial performance of a provision of these Terms does not affect its right to require performance subsequently.

(b)      A single or partial exercise of or waiver of the exercise of any right, power or remedy does not preclude any other or further exercise of that or any other right, power or remedy.

(c)      A right under these Terms may only be waived in writing signed by the party granting the waiver, and is effective only to the extent specifically set out in that waiver.

9.9    Notices

(a)      A notice, consent or communication under these Terms must be in writing, signed by or on behalf of the person giving it, addressed to the person to whom it is to be given and delivered by hand, sent by prepaid mail or sent by email to that person’s address as the person notifies the sender.

(b)      Notices to the Content Provider may be sent to the email address in contact us section of the Platform.  Notices to you will be sent to the address given when ordering the Content.

(c)      A notice, consent or communication is given and received:

(i)       if it is hand delivered, on the day it is given;

(ii)      if it is sent by post, three business days after posting (if within Australia) or seven business days after posting (if outside Australia); and

(iii)     if it is sent by email, that day, if the time of departure from the sender’s mail server is before 5.00pm on a business day, or the next business day in any other case, unless the sender receives an automated message generated by the recipient’s mail server (other than an ‘out of office’ message or other response generated by or at the instigation of the recipient) that the email has not been delivered within two hours.

10.   Defined terms & interpretation

10.1  Defined terms

In these Terms:

(a)      Business Day means a day that is not a Saturday, Sunday or public holiday in Brisbane, Queensland.

(b)      Confidential Information means any information:

(i)       relating to the business and affairs of a party;

(ii)      relating to the customers, clients, employees, sub-suppliers or other persons doing business with a party;

(iii)     relating to the Intellectual Property Rights of the Content Provider;

(iv)     which is by its nature confidential;

(v)      which is designated as confidential by a party; or

(vi)     which the other party knows or ought to know, is confidential,

and includes all trade secrets, knowhow, marketing, financial and customer information, forecasts, and strategies and any other commercially valuable information of a party.

(c)      Consequential Loss means indirect, economic, special or consequential loss or damage, loss of revenue, time, goodwill, data, anticipated savings, opportunity, loss of production and loss of profit.

(d)      Content means the product to be downloaded by you and licenced by the Content Provider to the Customer pursuant to these Terms.

(e)      Download Fee means the amount paid by you as the fee to download and use the Content.

(f)       Insolvency Event means any of the following events concerning a party:

(i)       if an administrator, liquidator, receiver, receiver and manager or other controller is appointed to, or over, any of the property or undertaking of the party;

(ii)      if the party is unable to pay its debts when they become due and payable;

(iii)     if the party ceases to carry on business; or

(iv)     if any event happens in Australia or any other country or territory in respect of a party that is similar to any of the events or circumstances referred to in this definition

(g)      Intellectual Property Rights includes patents, utility models, rights to inventions, copyright and neighbouring and related rights, trade marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), 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, any rights and all similar or equivalent rights or forms of protection that subsist or will subsist now or in the future in any part of the world..

(h)      Platform means the platform and website located at http://coursewaremarket.com

(i)       Platform Provider’s Policies means the policies determined by the operator of the Platform from time to time which are available on the Platform.

(j)       Website Terms means the terms and conditions governing the use of the Platform which are available on the Platform.

10.2  Interpretation

In these Terms:

(a)      a reference to a clause or party is a reference to a clause of, and party to, these Terms;

(b)      a reference to a party to these Terms or any other document or agreement includes the party’s successors, permitted substitutes and permitted assigns;

(c)      if a word or phrase is defined, its other grammatical forms have a corresponding meaning;

(d)      a reference to a document, agreement or policy (including a reference to these terms) is to that document, agreement or policy as amended, supplemented, varied or replaced;

(e)      a reference to legislation or to a provision of legislation (including subordinate legislation) is to that legislation as amended, re-enacted or replaced, and includes any subordinate legislation issued under it;

(f)       if any day on or by which a person must do something under these Terms is not a Business Day, then the person must do it on or by the next Business Day;

(g)      a reference to a person includes a corporation, trust, partnership, unincorporated body, government and local authority or agency, or other entity whether or not it comprises a separate legal entity; and

(h)      the meaning of any general language is not restricted by any accompanying example, and the words ‘includes’, ‘including’, ‘such as’, or ‘for example’ (or similar phrases) do not limit what else might be included.

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