1.1 Open Learning Global Pty Ltd (“OLG” or “Open Learning” or “we” or “us”) is the authorised user of all intellectual property rights in the OLG Course Directory and Search Platform (the Course Directory Platform).
This Agreement (which includes Advertiser Terms & Conditions, the Application Form and all Schedules are attached hereto) (“Agreement”) is entered into between OLG and the entity or person (“Client” or “you” or “your”) who has completed the Application Form (as defined below) for advertising on the Course Directory Platform.
1.3 In the event that a person submits an Application Form as agent on behalf of its principal, then the agent must specify the principal's name as well as its own on the Application Form, failing which OpenLearning will reject the same.
1.4 This Agreement will come into effect and be binding on both you and us, on the Commencement Date (as defined below).
NOTE THAT BY INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT (BY CLICKING ‘ACCEPT’ ON THE APPLICATION FORM OR BY SIGNING THE APPLICATION FORM), YOU ARE AGREEING TO BE BOUND BY ALL TERMS, CONDITIONS AND NOTICES CONTAINED OR REFERENCED IN THIS AGREEMENT. FOR CLARITY, EACH OF YOU AND US EXPRESSLY AGREES THAT THIS AGREEMENT IS LEGALLY BINDING UPON US.
2.1 In these Terms & Conditions ("Conditions") the words/expressions referred to below shall have the following meanings except where the context otherwise requires:
"Advertisement" means an advertisement or series of advertisements for the Client and/or its products and services including (but not limited to) profiles, user and third party content, articles and features, advertisements on any Website and Banner Advertisements.
Application Form means the form completed by you, whereby you have applied to receive the Promotion Services, specifying the Fee and details of Package requested, and subject to the terms of this Agreement.
Banner Advertisement means a banner advertisement on any Website, including but not limited to sponsoring advertisements.
Client means the person, firm, body corporate or other entity stated in any Application Form accepted by OpenLearning.
Commencement Date means the date when this Agreement comes into force, which is the the date inserted in the Application Form.
Fees means all amounts payable by Partner to OLG under these Terms as set out in the Application Form.
GST means any goods and services tax imposed by the GST Law or any other value added tax, sales tax or consumer tax payable.
GST Law means the A New Tax System (Goods and Services Tax) Act 1999, and any associated legislation and regulations to the extent they relate to GST.
Initial Term means the period set out in the Application Form.
Package means any combination of Advertisements and Banner Advertisements purchased by the Client on any one occasion.
Partner means party identified in the relevant registration, who may also manage the access of third-party users to the OpenLearning Course Directory Platform or to whom OpenLearning makes available a white-labelled version of the OpenLearning Course Directory Platform.
Promotion Services means any one or more of Advertisements and Banner Advertisements, whether or not purchased in a Package, published or conducted by OpenLearning from time to time.
Renewal Term means each additional period of this Agreement, as provided for in the Application Form, following the Initial Term;
Website means in the case of website Advertisements and Banner Advertisements, the OpenLearning websites on which the Advertisement is to appear.
Working Day means a day which is not a weekend or public holiday in Sydney, New South Wales
Schedule means a schedule to this Agreement.
3.1 The Agreement begins on the Commencement Date and continues until the end of the Initial Term, unless automatically renewed under clause 3.2 or terminated earlier under the provisions of the Agreement that allow for earlier termination.
3.2 Subject to clause 3.3, this Agreement will automatically renew for the applicable Renewal Term (as set out in the Application Form) after the Initial Term unless either we or you gives written notice to the other that we or you do not want this Agreement to continue. The notice to discontinue this Agreement must be given at least 30 days before (i) the end of the Initial Term; or (ii) where the applicable Renewal Term is one month, not less than 24 hours before the end of each such Renewal Term; or (iii) where the applicable Renewal Term is one year, at least 30 days before each anniversary of the end of the Initial Term, where this Agreement has continued after the Initial Term.
3.3 If any terms of this Agreement will change (including changes to fees) after the Initial Term, we will give you written notice of those changes at least 30 days before the end of (i) the Initial Term or (ii) each Renewal Period, where the Renewal Term is one year. If the Renewal Term is one month, changes to the Agreement will not take effect before the expiry of 30 days from the date we notify of those changes.
4.1 The Client warrants that:
4.1.1 any description relating to itself and its products or services in the Advertisement is true and accurate and is not likely to mislead or deceive;
4.1.2 the Advertisement does not contravene any law or regulation and is not defamatory;
4.1.3 it will at all times comply with all relevant advertising standards guidelines and regulations including those issued by the Advertising Standards Bureau;
4.1.4 it will supply a copy for Advertisements prior to copy deadlines, as notified or published by OpenLearning;
4.1.5 where applicable, it will attend and participate in Events where it is agreed that it will do so as part of the delivery of the Promotion Services;
4.1.6 it has all the necessary consents, approvals and authority to licence to OpenLearning all Intellectual Property it, or its agents or contractors provide to OpenLearning for the purpose of OpenLearning carrying on its business;
4.1.7 information and Intellectual Property the Client provides to OpenLearning does not violate or constitute the infringement of any patent, copyright, trademark, trade secret, right of privacy, right of publicity, moral rights, or other Intellectual Property right recognized by any applicable jurisdiction of any person or entity, or otherwise constitutes a breach of any agreement with any other person or entity;
4.1.8 information the Client provides to OpenLearning is true, and accurate and is not misleading or deceptive in any way or particular; and
4.1.9 where the Client is acting as agent, that it will procure compliance of clauses 3.1(a) to3.1(h) by its principal for whom Promotion Services are being procured.
4.2. If the Client breaches clause 4.1 it shall immediately rectify the breach and fully indemnify OpenLearning against any fines, losses, costs, damages, charges, claims, demands, expenses direct losses, loss of profits and indirect and consequential losses incurred by OpenLearning as a result of the Client's breach.
4.3. The Client shall be responsible for insuring all films, artwork, photographic and other advertising materials delivered to OpenLearning and OpenLearning shall not be liable to any loss or damage thereto while the same is in its possession or control.
4.4. The Client shall be responsible for collecting any films, artwork, photographic and other materials submitted to OpenLearning for the purposes of the Advertisement. OpenLearning shall accept no responsibility for any such items which are not collected by the Client.
4.5. The Client grants OpenLearning an irrevocable, non-exclusive, royalty-free, perpetual, and worldwide license to use content and Intellectual Property the Client provides OpenLearning, including, without limitation:
4.5.1 the rights to copy, distribute, transmit, publicly display, publicly perform, reproduce, edit, modify, alter, translate and reformat the Client’s content, and/or to incorporate it into a collective work; and
4.5.2 the right to sublicense any or all of OpenLearning’s license rights to others.
4.6. For the avoidance of doubt, this means OpenLearning has the right to use any and all Intellectual Property and other material the Client submits (including articles, features, photographs, and audio-visual materials, ideas about OpenLearning products, services, publications or advertising campaigns) in any manner OpenLearning determines, without notice.
4.7. The Client irrevocably, voluntarily and unconditionally consents to all or any acts or omissions by OpenLearning, or persons authorised by OpenLearning, concerning any and all of the moral rights made or to be made by the Client in relation to content the Client provides OpenLearning which would otherwise infringe the Client’s moral rights.
5.1 All Advertisements must be approved by OpenLearning prior to publication. OpenLearning reserves the right to refuse, omit, alter, suspend, withdraw or otherwise deal with any Advertisement at its absolute discretion and without explanation or liability to the Client. The Client acknowledges that OpenLearning’s approval does not include any approvals relating to the Advertisements not infringing Intellectual Property rights of any person.
6.1. OpenLearning shall use its best endeavours to ensure the appearance of Advertisements but does not accept liability for the non-appearance of any Advertisement.
6.2. Unless the parties have agreed to the position of the Advertisement on the Website (in which case this shall be agreed in writing by the parties) OpenLearning does not guarantee the position of any Advertisement on the Website. Where the Client has expressed a preference only as to the position of its Advertisement on the Website OpenLearning shall use its reasonable endeavours to comply with the Client's preference but shall have no liability to if the Advertisement is not published in the preferred position.
6.3. The Client also acknowledges that the Website and associated services OpenLearning provides may be liable to disruption, disconnection or other like event, being beyond the control of OpenLearning and that the Client must still pay for the services OpenLearning provides notwithstanding that such services may not have been active for the whole time they were intended to be provided.
7.1 The Client may not cancel an Application Form which has been accepted by OpenLearning.
8.1 Client must pay the Fee (without any set off or deduction) at the rate and in the manner and time specified in the Application Form.
8.2. All fees are exclusive of Goods and Service Tax, but any fees for which Goods and Services Tax is payable shall be recoverable from the Client in addition to the fees.
8.3. OpenLearning shall be entitled to invoice the Client immediately following OpenLearning’s acceptance of the Client's Application Form
8.4. The Client shall pay OpenLearning within 30 days of the date of OpenLearning’s invoice. The fees shall be payable in full and the Client shall not be entitled to make any deduction or exercise any right or set-off counterclaim or contribution howsoever arising. The time of payment of the fees shall be of the essence of the Agreement.
8.5 Any portion not paid on or before the date that it is due, and that is not promptly disputed in good faith by Partner, shall accrue interest from the due date to the data payment is made in full at the annual rate of 4% per annum above the Commonwealth Bank of Australia’s base rate.
8.6. Where the Client pays a subscription for an agreed number of advertisements on any Website during an agreed period of time ("Subscription Period") and the Client fails to take up the agreed number during the Subscription Period:
8.6.1 the Client shall not be entitled to a refund of the fees in respect of the Advertisements which has failed to take up during the Subscription Period; and
8.6.2 the Client shall not be entitled to carry forward Advertisements which has failed to take up during one Subscription Period into a subsequent Subscription Period.
8.7 In addition to other rights OpenLearning has, the Client indemnifies and must keep indemnified OpenLearning for any costs of enforcement or recovery relating to the payment of fees the Client owes OpenLearning (including legal fees).
9.1 If GST is payable on a supply made under or in connection with this Agreement, the party providing the consideration for that supply must pay as additional consideration an amount equal to the amount of GST payable on that supply. Any amount of GST is payable at the same time as the payment for the taxable supply to which it relates.
9.2 Unless otherwise stated, all amounts referred to in this Agreement are stated on a GST exclusive basis.
9.3 If an adjustment event occurs in relation to a supply made under or in connection with this Agreement, the GST payable on that supply will be recalculated to reflect that adjustment and an appropriate payment will be made between the parties.
9.4 If GST is applicable, a party, in providing an invoice under this Agreement shall provide a proper tax Invoice.
9.5 Terms which have a defined meaning in the GST Law shall have that meaning in this Agreement.
10.1 The content and terms of this Agreement shall be confidential as between the parties and there shall be no breach of that confidence by either party.
10.2 Save as provided in clause 10.1, each party agrees and undertakes that it will keep confidential and will not use for its own purposes nor without the prior written consent of the other party disclose to any third party all information of a confidential nature, (including but not limited to trade secrets and information of commercial value) which may become known to such party from the other unless such information is public knowledge (other than by breach of this clause 10) or is required to be disclosed by a court of competent jurisdiction. Breach of this clause 10.2 shall not be subject to the terms of clause 11 (Limitation of Liability).
10.3. The obligations in this clause 10 continue:
10.3.1 for matters in the nature of a trade secret, for an unlimited period of time; and
10.3.2 for all other matters comprised in the confidential information, the latest date to which it would be reasonable to protect the interests of the party which owns the information, but in any event not less than 24 months after this Agreement terminates or otherwise expires (whichever is the later).
11. Except for liability in relation to breach of any implied condition, warranty or guarantee, including under the Competition and Consumer Act 2010(Cth), the exclusion of which from a contract would contravene any statute or cause any part of this Agreement to be void, or as otherwise provided in this Agreement, all conditions, warranties and representations expressed or implied by statute, common law or otherwise in relation to OpenLearning’s obligations hereunder are hereby excluded.
11.1 Without prejudice to any other terms in this Agreement the aggregate liability of OpenLearning shall not in any circumstances (except in respect of death or personal injury caused by OpenLearning’s negligence) exceed the total sum payable by the Client to OpenLearning under this Agreement. Where OpenLearning fails to provide a service, its total liability to the Client shall be limited to a refund of the fees paid or payable by the Client for the service or the cost of resupply of that service (the choice of which is at OpenLearning’s discretion). Where the service not so performed has been ordered as part of a Package, OpenLearning shall reasonably determine the proportion of the total payment relating to the unpublished/unperformed service its total liability to the Client in respect of the unpublished/unperformed service shall be limited to such proportion
11.2 OpenLearning shall not be liable to the Client for any indirect or consequential losses or damages (including but not limited to loss of profits) whether arising from breach of contract negligence or howsoever
11.3 Nothing in these terms shall limit or exclude our liability for any other liability that cannot be excluded or limited by Australian law. Where such liability cannot be excluded, the Client’s remedy is limited, in the case of goods, to the resupply or cost of resupply of such goods, and in the case of services, to the resupply of such services or cost of such resupply and in all cases (goods and services) at the election of OpenLearning.
11.4 The Client agrees to indemnify and hold OpenLearning and its employees and agents harmless from and against any claims, actions or demands including without limitation, the Client’s breach of any one or more warranties or terms of this Agreement.
12.1 Notwithstanding and without prejudice to clause 8 above OpenLearning shall be entitled to terminate this Agreement immediately by giving written notice to the Client if the Client fails to make payment in accordance with this Agreement.
12.2 Either party is entitled to terminate this Agreement immediately in any of the following events:
12.2.1 if the other party convenes a meeting of its creditors, becomes insolvent, is unable to pay its debts, has an administrative receiver or receiver or administrator appointed over its assets or business or is the subject of a petition presented to put it in into liquidation; or
12.2.2 if the other party is in in breach of any material term of this Agreement, such material term being incapable of remedy or incapable of remedy within 7 days.
12.3 In any such case the party exercising the right of termination shall be entitled to charge the other party any costs, charges or expenses (direct or consequential) howsoever arising incurred by the terminating party.
12.4 You agree that on expiry or termination of this Agreement for any reason, all of your rights in respect of the Services will end and any termination of this Agreement will not affect the rights either you or we have against the other in respect of anything done or in respect of any sums or other claims outstanding at the time of termination omitted under this Agreement before such termination nor will it affect the coming into force or the continuance of any provision which is expressly or by implication intended to come into or continue in force on or after the date of termination.
13.1 The Client shall not be entitled to assign or otherwise transfer the benefit of its obligations under this Agreement without the prior written consent of OpenLearning.
13.2 OpenLearning may assign or otherwise transfer the benefit of its obligations under this Agreement by giving notice to the Client.
14.1 Intellectual Property means anything which is or can be the subject of intellectual property rights including any:
14.1.1 work or sound recording as defined in the Copyright Act 1968 (Cth);
14.1.2. trade mark as defined in the Designs Act 2003 (Cth), whether registrable or not;
14.1.3 invention as defined in the Patents Act 1990 (Cth), whether patentable or not;
14.1.4 trade secrets, know how or other information protected by law, and in each case, whether registered or unregistered, and including all applications (and rights to apply) for, and renewals or extensions of such rights and all rights of action for infringement of such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world and any improvements and/or modifications to such rights.
14.2 When You publish or transmit any material on or through the OpenLearning Course Directory Platform, You warrant that the material is owned by You and You grant OpenLearning an unrestricted irrevocable, non-exclusive, royalty-free, transferrable, perpetual, and worldwide licence to use, reproduce, modify, adapt and sub-license.
14.3 OpenLearning is the owner or the licensee of all Intellectual Property rights in the OpenLearning Course Directory Platform and in the material published thereon, excluding material published by a Partner.
15.1 If either party is unable to perform its obligations by reason of matters beyond its control including but not limited to any act of terrorism, war, riot, civil commotion, compliance with any law or governmental order, fire, flood or storm, strikes, lock-outs or other industrial disputes (whether involving the workforce of the party so prevented or of any other party) delay in transit, power failure, postal delay, the party so affected will notify the other party and the parties agree to delay the performance of this Agreement for as long as may be reasonably necessary until the cause(s) giving rise to force majeure has/have ceased.
16.1 Before court or arbitration proceedings other than for urgent interlocutory relief may be commenced, the following steps must be taken to attempt to resolve any dispute that arises out of or in connection with this contract (including any dispute as to the validity, breach or termination of the contract, or as to any claim in tort, in equity or pursuant to any statute).
16.2 Notice (the notice of dispute) must be given in writing by the party claiming that a dispute has arisen to the other party (or parties) to this contract specifying the nature of the dispute.
16.3 Upon receipt of the notice of dispute, the parties must attempt to agree upon an appropriate procedure for resolving the dispute.
16.4 If within 10 business days of receipt of the notice of dispute the dispute is not resolved or an appropriate alternative dispute resolution process is not agreed, then the parties shall refer the dispute to Resolution Institute, (ACN 008 651 232; Level 2, 13-15 Bridge Street, Sydney NSW 2000; email: infoaus@resolution.institute; telephone: (61-2) 9251 3366, for facilitation of a mediation in accordance with Resolution Institute's Mediation Rules.
16.5 The parties must co-operate with Resolution Institute as facilitator.
16.6 If within 10 business days after referral of the dispute to Resolution Institute the parties have not agreed upon the mediator or other relevant particular the mediator and any other relevant particular will be determined in accordance with Resolution Institute’s Facilitation Rules.
16.7 This clause will remain operative after the contract has been performed and notwithstanding its termination.
17.1 Any representations made by OpenLearning prior to the making of the Agreement shall not form part of the Agreement and shall be of no effect. The Agreement supersedes all prior agreements, arrangements and undertakings between OpenLearning and the Client relating to the subject matter hereof. No variation or addition shall be binding upon the parties unless made in writing and signed by the authorised representatives of both parties.
17.2 If any provision or part of a provision of this Agreement shall be or be found by any court of competent jurisdiction to be invalid or unenforceable such invalidity or unenforceability shall not affect the other provisions or parts of such provisions of this Agreement all of which shall remain in full force and effect.
17.3 If OpenLearning fails to insist that the Client perform any of its obligations under this Agreement, or if OpenLearning does not enforce its rights against the Client, or if OpenLearning delays in doing so, that will not mean that OpenLearning has waived its rights against the Client and will not mean that the Client does not have to comply with those obligations. If OpenLearning does waive a default by the Client, OpenLearning will only do so in writing, and that will not mean that OpenLearning will automatically waive any later default by the Client.
17.4 No agency, partnership, joint venture, employee-employer or other similar relationship is created by this Agreement. In particular, the Client has no authority to bind OpenLearning, its related entities or affiliates in any way whatsoever.
17.5 This Agreement, its subject matter and formation, is governed by the law of New South Wales, Australia. The Client and OpenLearning both agree that the Courts of that State will have exclusive jurisdiction.
17.6 Each provision of this Agreement operates separately. If any court or competent authority decides that any of them are unlawful or unenforceable, the remaining conditions will remain in full force and effect.
18.1 Provisions in this Agreement must not be construed against OpenLearning because OpenLearning was responsible for or put forward that provision or because that provision benefits OpenLearning.
18.2 In this Agreement unless the context indicates a contrary intention:
18.2.1 headings are for convenience and do not affect interpretation;
18.2.2 the plural shall include the singular and vice versa;
18.2.3 a reference to any gender shall be taken to include every other gender;
18.2.4 if a word or phrase is defined, its other grammatical forms have a corresponding meaning;
18.2.5 a reference to this Agreement includes a reference to any amendment, novation, variation, supplemental deed or replacement from time to time in existence;
18.2.6 a reference to an agreement or document (including these terms) is to the agreement or document as amended, varied, supplemented, novated or replaced, except to the extent prohibited by these terms or that other agreement or document;
18.2.7 a reference to writing includes any method of representing or reproducing words, figures, drawings, or symbols in a visible form;
18.2.8 reference to any statute, or any subordinate legislation or instrument includes all statutes, subordinate legislation or instruments amending, modifying, consolidating, re-writing, re-enacting or replacing them and a reference to a statute includes all subordinate legislation and instruments made under that statute.
18.2.9 a reference to conduct includes, an omission, statement or undertaking, whether or not in writing;
18.2.10 a reference to an agreement includes any undertaking, deed, agreement and legally enforceable arrangement, whether or not in writing;
18.2.11 a reference to a document includes an agreement (as so defined) in writing and any certificate, notice, instrument and document of any kind;
18.2.12 a reference to dollars and $ is to Australian currency;
18.2.13 the meaning of general words is not limited by specific examples introduced by including, or for example, or similar expressions; and
18.2.14 references to agree, approve or consent are references to agreement, approval or consent (as the case may be) in writing.
19.1 Notices under this Agreement may be delivered by hand, by mail, or by email to the addresses specified in the Application Form
19.2 Notices will be deemed given:
19.2.1 in the case of hand delivery, on written acknowledgment of receipt by an officer or other duly authorised employee, agent, or representative of the receiving party.
19.2.2 in the case of posting, three days after despatch.
19.2.3 in the case of email, at the time of receipt of the email, namely when that email enters the receiving party’s information system (if received on a business day, or otherwise at the commencement of the first business day following that receipt).
This Agreement may be executed in counterparts by the respective parties, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement, provided that this Agreement shall be of no force and effect until the counterparts are exchanged.