Subscription Agreement

This Agreement provides the terms and conditions by which you as the Subscriber may obtain a Subscription to the Products provided by Training Snippets.  By signing the Statement of Work the Subscriber agrees to be bound by these terms and conditions

1. Definitions and Interpretation

Definitions

1.1 In this Agreement:

Confidential Information means all information which is disclosed between the parties under or in connection with this Agreement, provided that no information will be regarded as confidential if it:

(a) is or becomes public knowledge other than by breach of this Agreement;

(b) is received by a party from a third party where the receiving party has no reason to believe that there has been a breach of any obligation of confidentiality owed to the discloser;

(c) is independently developed by an employee or agent of the receiving party having no knowledge of the information the subject of the disclosure;

(d) was already in the receiving party’s possession when provided by or on behalf of the disclosing party; or

(e) is agreed in writing by the parties to no longer constitute Confidential Information.

Derivative includes any improvements, derivatives or modifications to the Product and to any Intellectual Property rights relating to the Product that the Subscriber may propose or make during the Term or which the Subscriber and Training Snippets may jointly make during the Term.  

Documentation means such documentation supporting the Product as Training Snippets may in its discretion provide to the Subscriber in connection with their use of the Product.

Intellectual Property means copyright (including future copyright), trademarks, designs, patents, business names, domain names, semiconductor or circuit layout rights, plant breeders rights, rights in respect of trade secrets and other confidential information, and all other rights generally falling within the scope of this term, whether registered or unregistered and whether registrable or not.

Product means the Training Snippets 

a) Online e-learning Portal, video content and Quiz questions, further itemised in the Statement of Work

b) Basic Portal, video content and Quiz questions, further itemised in the Statement of Work

c) embed links supplied to Subscribers secure URL, further itemised in the Statement of Work 

specified in Item 2 of the Statement of Work including Software, if any, and Documentation which will be provided by Training Snippets to the Subscriber on the terms and conditions of this Agreement via access to the Site.

Purpose means the purpose set out in Item 3 of the Statement of Work.

Statement of Work means the Statement of Work developed by Training Snippets and provided to the Subscriber as amended from time to time.

Software means the computer programs provided in object code format as part of Product.

Subscriber means the account holder or You (as the case may be) who may access the Product on the Site subject to the terms and conditions of this Agreement and who may use the Product subject to the terms and conditions under this Agreement.

Subscription means the access granted to the Subscriber under clause 5.2.

Subscription Fee means the fee set out in Item 6 of the Statement of Work.

Subscription Contact means the Subscriber’s nominated contact as set out in Item 4 of the Statement of Work.

Training Snippets means Training Snippets Pty Ltd ACN 155 836 641.

Site means the website link provided by training snippets to access the content to the subscriber

You means the person duly authorised by the Subscriber to enter into this Agreement with Training Snippets on behalf of the Subscriber.

Interpretation

1.2 In this Agreement, unless the context requires otherwise, a reference to:

(a) a clause or Statement of Work, is a reference to a clause of or Statement of Work to this Agreement;

(b) ‘this Agreement’ includes any Statement of Works;

(c) a document or agreement, including this Agreement, includes a reference to that document or agreement as novated, altered or replaced from time to time;

(d) a person, includes a partnership, joint venture, unincorporated association, corporation and a government or statutory body or authority;

(e) ‘dollars’ or ‘$’ is a reference to Australian dollars;

(f) a business day means a day other than a Saturday or Sunday on which banks are open for business in Melbourne, Victoria and if the day on which a thing is to be done under this Agreement is not a business day, it must be done on the next business day;

(g) any law or legislation includes any statutory modification or amendment of that law or legislation and any subordinate legislation or regulations made under that law or legislation;

(h) writing includes typewriting, printing, photocopying and any other method of representing words, figures or symbols in a permanent visible form; 

(i) the word ‘include’ or ‘including’ is to be interpreted without limitation;

(j) the singular includes the plural and the plural includes the singular; and

(k) a gender includes all genders.

1.3 If a word or phrase is given a defined meaning, other grammatical forms of that word or phrase have a corresponding meaning.

1.4 Headings are for reference only and do not affect the meaning of this Agreement.

1.5 This Agreement may not be interpreted adversely to a party only because that party was responsible for preparing it.

2. Term

The term of the Subscription and this Agreement is the period as specified in Item 5 of the Statement of Work or as otherwise agreed in writing between the parties.

3. Provision of Product

3.1 Training Snippets will provide the Product to the Subscriber on the terms and conditions of this Agreement.

3.2 Unless otherwise agreed between the parties, upon acknowledgement of this Agreement and payment of the Subscription Fee, Training Snippets will, within a reasonable time, arrange for a username and login or embed codes to be provided to the Subscriber to allow access to the Product via the Site.

4. Payment

4.1 The Subscriber will pay to Training Snippets the Subscription Fee on the terms specified in Item 6 of the Statement of Work.

4.2 All payments made by the Subscriber under this Agreement are non-refundable.

5. Ownership and Licence to Use Product and Derivatives

5.1 Training Snippets is and will continue to be the legal owner of the Product and of any Intellectual Property rights relating to the Product.

5.2 Training Snippets grants to the Subscriber a non-exclusive licence to use the Product for the Purpose during the Term on the terms and conditions of this Agreement.

5.3 Training Snippets will be the legal owner of the Derivatives and of any Intellectual Property rights relating to the Derivatives.

6. Obligations of The Subscriber

6.1 The Subscriber Contact shall notify Training Snippets of any failure, error or other malfunction of any part of the Product within twenty-four (24) hours of becoming aware of such occurrence. 

6.2 The Subscriber agrees Training Snippets may implement such modifications and changes that Training Snippets in its sole discretion may make to the Product during the Term. The Subscriber understands that these modifications and changes may be incompatible with previous modifications and could include substantial changes to the Product and its operating procedures. 

6.3 The Subscriber acknowledges, that during the Term, Training Snippets will have full and free access to the Product as system administrator to allow Training Snippets to perform its obligations under this Agreement at such reasonable times as may be required by Training Snippets. 

6.4 The Subscriber must not distribute, release, or in any way disclose or permit access to the Product or any Derivatives to any person or entity other than its employees and agents who are directly involved in the use of the Product and who are made aware of and agree to be bound by the obligations of the Subscriber under this Agreement.

6.5 The Subscriber during the Term of the Licence must: 

(a) use the Product for Purpose and not in any other way, including for commercial purposes;

(b) use the Product with the prudence and caution appropriate to the nature of the Product;

(c) use the Product in compliance with all applicable laws, governmental regulations and guidelines; 

(d) promptly disclose to Training Snippets in writing the discovery or development of any Derivatives.

6.6 The Subscriber must not:

(a) copy, modify, or reverse engineer the Product hardware or design, make derivative works based upon the Product;

(b) use the Product to develop any other products without Training Snippets’ prior written approval; 

(c) make any copy of the Product, Documentation or Software; 

(d) publish details of the Product or Derivatives without Training Snippets' prior written consent; or

(e) sell, licence, rent, or transfer the Product to any third party. 

7. Obligations of Training Snippets

7.1 Training Snippets will provide the Subscriber with such technical assistance as Training Snippets may deem necessary to properly access and operate the Product. 

7.2 During the Term, Training Snippets will consult with the Subscriber Contact regarding the performance of the Product and will evaluate any error reports provided by the Subscriber Contact. 

7.3 Training Snippets will undertake to make such modifications and improvements to the Product as deemed appropriate by Training Snippets and provide the same to the Subscriber at no cost; provided, however, Training Snippets is not obligated to make any modifications or improvements.

8. Limitation of Liability and Indemnity

8.1 The Subscriber acknowledges that the Product is provided on an ‘as is’ basis, and to the extent permitted by law, Training Snippets supplies the Product without warranty of merchantability, fitness for a particular purpose, safety, quality or any other warranty, express or implied. 

8.2 Training Snippets makes no representation or warranty that the use of the Product will not infringe the Intellectual Property rights of a third party, however, Training Snippets acknowledges that, to the best of its knowledge, the Product, when used in accordance with this Agreement, will not infringe any third party Intellectual Property rights.

8.3 The Subscriber acknowledges and agrees that it uses the Product at its own risk and that it is its responsibility to put in place all required insurances relating to the Product and their use.

8.4 Training Snippets will not be liable for any loss, claim, damage or liability (including but not limited to incidental or consequential damages, lost profits or lost data, or any other indirect damages even where Training Snippets has been informed of the possibility thereof) which may arise from or in connection with this Agreement or the use or handling of the Product.

8.5 Notwithstanding any other provision of this Agreement, where Training Snippets is unable to exclude liability, such liability is limited to the total amount of any Subscription Fee actually paid to Training Snippets by the Subscriber in the preceding 12 months, as at the date of the event giving rise to the liability.

8.6 The Subscriber indemnifies Training Snippets, its officers, employees, servants and agents from and against any cost, damage, loss (including consequential loss), liability or expense (including legal and other professional costs on a full indemnity basis) arising out of or in connection with the use or handling of the Product under this Agreement (including the delivery of the Product under clause 3.2) or as a result of, or in connection with any breach or alleged breach of this Agreement (including a breach of Warranty) except to the extent that the liability is caused by the negligence or wrongful act or omission of Training Snippets its officers, employees, servants and agents.

8.7 You warrant that prior to the use of individual training snippets you will advise any person who uses this content of the following Disclaimer:

“Viewers should not rely solely on this safety video presentation, and should seek appropriate assistance from the relevant authorities.

This video presentation has been made as a guide only and is not a substitute for a formal safety training program. It may not comply with any, or all of the applicable laws, standards, statutes, regulations or procedures that govern the viewer’s jurisdiction”.

9. Confidentiality

9.1 Unless expressly authorised by Training Snippets, the Subscriber must not, and must ensure that its employees, agents and sub-contractors do not, disclose, use or make public any Confidential Information belonging to or concerning Training Snippets, except to the extent that such disclosure is required by law.

9.2 On termination or expiry of this Agreement, or within 14 days after a written request by Training Snippets given at any time, the Subscriber must return to Training Snippets all Confidential Information of Training Snippets held by the Subscriber, its employees, agents or sub-contractors which is in written or tangible form and delete or destroy all such information held in electronic form.

10. Use of Product by Training Snippets

Nothing in this Agreement prevents Training Snippets from using or exploiting the Product or any other modifications or Derivatives of the Product, or from distributing the Product or any other modification or Derivatives of the Product, to any third party.

11. Use of Name and Logo

A party may not use the name or logo or any variation of the name or logo of another party, in any publicity, advertising, or news release without the prior written approval of an authorised representative of that party.

12. Reservation of Rights

12.1 We reserve the right to elect at any time during the Term in our sole discretion to revoke or amend the terms of this Licence (Amended Licence) or replace the Individual Training Snippet and any Products available for download on the Site with such updated or alternative content (Replacement Content).

12.2 Upon notice to the Subscriber, sent to the address or contact information provided by the Subscriber in Item 4 of the Statement of Work, or such other address as advised to Training Snippets in writing from time to time:

(a) of an Amended Licence, the terms of the Amended Licence will automatically apply to the Subscription and the Products and replace any licence granted under this Agreement; and 

(b) of Replacement Content being uploaded onto the Site, the Subscription for the Products that has been replaced immediately terminates and this Agreement automatically applies to the Replacement Content.

13. GST

13.1 Unless otherwise expressly stated, all consideration to be provided under this Agreement is exclusive of GST.

13.2 If GST is imposed on any supply made under this Agreement, unless the consideration for that supply is specifically described in this Agreement as 'GST inclusive', the recipient of the taxable supply must pay to the supplier an additional amount equal to the GST payable on the taxable supply.  Subject to the recipient receiving a tax invoice in respect of the supply, payment of the GST must be made at the same time as payment for the taxable supply.

13.3 If this Agreement requires a party to pay for, reimburse or contribute to any expense, loss or outgoing of another party, and that other party can obtain an input tax credit on an acquisition associated with the expense, loss or outgoing, the amount required to be paid, reimbursed or contributed by the first party will be the amount of the expense, loss or outgoing reduced by the amount of that input tax credit.  The reduction is to be made before any increase for GST under clause 13.2.

13.4 Terms used in this clause 3 have the meaning given to them in the A New tax System (Goods and Services Tax) Act 1999 (Cth).

14. Notices

14.1 A notice, demand, consent or other communication (Notice) given to a party under this Agreement is only effective if it is in writing delivered or sent by prepaid post to that party at its address set out in this Statement of Work.

14.2 Subject to clause 14.3 a Notice given for any purpose under this Agreement is taken to be received:

(a) if hand delivered, on delivery;

(b) if sent by prepaid post, three (or in the case of a Notice sent to another country, nine) business days after the date of posting; or

(c) except for Notices sent under clause 15, by electronic message to the email address set out in the Statement of Work.

14.3 If any Notice is given on a day that is not a business day or after 5.00pm on a business day in the place of business of the receiving party, it is to be treated as having been given at the beginning of the next business day.

14.4 Subject to clause 14.3 a Notice given for any purpose under this Agreement is taken to be received:

(a) if hand delivered, on delivery;

(b) if sent by prepaid post, three (or in the case of a Notice sent to another country, nine) business days after the date of posting;

(c) if sent by facsimile, when the sender’s facsimile system generates a message confirming successful transmission of the total number of pages of the Notice; or

(d) if sent by electronic message, when the sender receives an automated message confirming delivery, or eight hours after the message has been sent, unless the sender has received an automated message that the electronic message was not delivered or the sender knows or should reasonably know that there is a network failure which may have resulted in non-delivery.


14.5 If a party gives the other party three business days’ notice of a change of its address a Notice is only effective if it is given to that party at the latest address.

15. Termination

15.1 A party may terminate this Agreement without cause on 90 days’ written notice to the other party. 

15.2 A party may terminate this Agreement with immediate effect if the other party:

(a) commits a material breach of this Agreement which is unable to be rectified;

(b) fails to rectify a breach of this Agreement within 14 days of receiving a written notice specifying the breach to be rectified; or

(c) is subject to any form of insolvency, external administration or winding up. 

15.3 In the event that it is agreed by the parties that there is no longer a valid reason for continuing with the Agreement, they may terminate this Agreement by notice in writing signed by each of the parties. 

15.4 If this Agreement is terminated by the Subscriber in accordance with this clause 15, then Training Snippets is not obliged to refund any Subscription Fees already paid. 

15.5 The provisions of clauses 5.1, 5.3, 6.6, 8, 9, 10, 14, 15.4,15.5 and 16 will survive the termination or expiry of this Agreement. 

16. Dispute Resolution

16.1 If a dispute arises in relation to any matter under, or the meaning, intent or application of any part of this Agreement, the parties agree to undertake the procedure in this clause 16 before commencing any legal proceedings.

16.2 A party alleging a dispute must give the other party notice in writing setting out all details of the dispute.

16.3 On receipt of a notice under clause 16.2 the nominated senior representatives of both parties must meet within five business days and, acting reasonably and in good faith, do their best to resolve the dispute through negotiation.

16.4 If the dispute has not been resolved within five business days of the meeting under clause 16.3 the matter must be referred to mediation.  If the parties are unable to reach agreement on the identity of the mediator, the parties must request that the President of the Law Institute of Victoria or his or her nominee appoint the mediator.  The parties agree to be bound by the decision of the mediator.

16.5 Despite the existence of a dispute, each party must continue to perform its obligations under this Agreement.

16.6 This clause 16 does not restrict or limit the right of either party to obtain interlocutory relief or to immediately terminate this Agreement, where this Agreement provides such a right.

17. Miscellaneous

Entire Agreement

17.1 This Agreement constitutes the entire agreement between the parties as to its subject matter.  It supersedes all prior understandings or agreements between the parties and any prior condition, warranty, indemnity or representation imposed, given or made by a party in connection with that subject matter.

Variation

17.2 Subject to clause 12, this Agreement may only be altered or varied in writing signed by each of the parties.

Waiver

17.3 A waiver of any right under this Agreement must be in writing signed by the party granting it.  A waiver is only effective in relation to the particular obligation or breach for which it is given.  It is not to be taken as an implied waiver of any other obligation or breach or an implied waiver of that obligation on any other occasion.

17.4 The fact that a party fails to do, or delays in doing, something the party is entitled to do under this Agreement does not amount to a waiver.

Assignments and Transfers

17.5 A party must not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of the other party.

Severability

17.6 Part or all of any clause of this Agreement that is illegal or unenforceable in any jurisdiction will be severed in the relevant jurisdiction and the remaining provisions of this Agreement will continue in force.  The legality or enforceability of the provision in any other jurisdiction will not be affected.

Costs

17.7 Except as otherwise set out in this Agreement, each party must pay its own costs and expenses in relation to preparing, negotiating, executing and completing this Agreement and any document related to this Agreement.

Execution of Separate Documents

17.8 This Agreement is properly executed when;

(a) each party executes this document;  or

(b) if the parties execute separate but identical documents, when those separately executed documents are exchanged between the parties, including by mail, facsimile transmission or electronically.

Governing Law

17.9 This Agreement is governed by the laws of the State of Victoria