Licence Agreement

Licence Agreement

End User Licence Agreement

Career Calling International Pty Ltd (ABN 53 162 651 238) of 2/10 Lawn Court, Craigieburn, Vic, 3064, (CCI) trading as CAQA Compliance and Quality Assurance [1800 266 160 and info@caqa.com.au] will supply Resources to the Purchaser and grant the Purchaser a licence to use the Resources on the terms of this Agreement.

CCI brings the following clauses of this Agreement to the attention of the Purchaser.

Clause 5 (e) - the Purchaser must pay to CCI any loss that CCI suffers, including its legal costs, because of Contextualisations or other modifications made by or on behalf of the Purchaser to any Resources.

Clauses 5(f) and 5(g) place a cap on CCI's liability to the Purchaser to either a maximum of 2 x the Fee under this Agreement, or to the replacement or amendment of the Resources if permitted by law.

1. Definitions and Interpretation

(a) ASQA means the Australian Skills Quality Authority.
(b) Business Day means a day other than a Saturday, Sunday or public holiday in Melbourne, Victoria.
(c) Contextualise means tailoring the Resources by the Purchaser to a particular business, an Australian state or territory, a specific qualification or to suit the needs of the learner cohort.
(d) GST and "tax invoice" have the same meaning as in A New Tax System (Goods and Services Tax) Act 1999 (Cth).
(e) Intellectual Property Rights includes copyright and neighbouring rights and other rights resulting from intellectual activity throughout the world.
(f) Price means the price of the Resources specified on the Website.
(g) Purchaser means the person ordering the Resources, and if that person orders on behalf of another person or organisation, Purchaser means that other person.
(h) Resources means the educational resources ordered by the Purchaser, whether in printed or electronic form, and including any replacement versions provided in accordance with clause 6(d).
(i) Start Date means the date of the payment of the Price in cleared funds.
(j) Website means the website of CCI from which the Purchaser purchases the Resources.
(k) A reference to “includes” or “including” means “includes without limitation”.
(l) Where a word or phrase is given a particular meaning, other parts of speech and grammatical forms of that word or phrase have corresponding meanings.
(m) A reference to $, dollars or AUD is a reference to Australian dollars.

    2. Acknowledgement

    (a) The Purchaser acknowledges that it has had the opportunity to read this Agreement, seek advice and negotiate the terms of this Agreement.
    (b) The parties acknowledge that the terms of this Agreement are necessary to protect the legitimate interests of the parties.

      3. Order and payment

      (a) The Purchaser must order the Resources via the Website. The Price of the Resources is specified on the Website. CCI may accept or decline the order. If CCI accepts the order, the Purchaser must pay for the Resources via the Website. Following payment, CCI will send the Purchaser a tax invoice for the Price and deliver the Resources electronically via the Website to the Purchaser. Pre-orders of Resources that are not yet available will be delivered to the Purchaser once they are available..

        4. Licence

        (a) CCI grants to the Purchaser a non-exclusive licence to use the Resources in its business within Australia for the term of this Agreement. Non-exclusive means that CCI can license the same Resources to other parties. If the Purchaser wishes to use the Resources outside Australia, please contact CCI.
        (b) This licence will commence on the Start Date and continue until this Agreement is terminated in accordance with this Agreement. If, contrary to clause 3, the Purchaser has not paid the Price before the Resources are delivered, it must not use the Resources in any way before full payment of the Price.
        (c) The Purchaser may reproduce and copy the Resources and distribute them to its staff and students for the purposes of its business in print and/or electronic form.
        (d) The Purchaser must not, under any circumstances, sell or otherwise supply any part of any of the Resources to any third party (except its students and staff) or use any part of any of the Resources for or on behalf of any third party.
        (e) The Purchaser must not assign or sub-license this Agreement to any third party without the prior written consent of CCI.
        (f) If CCI agrees to allow the Purchaser to use the Resources outside Australia, the Purchaser acknowledges that the Resources are designed for use in Australia. The Purchaser is responsible for determining the suitability of the Resources for its purposes in any country other than Australia, including compliance of the Resources with local laws, regulations and requirements.

          5. Purchaser changes to Resources

          (a) The Resources are not intended or designed to be an “off-the-shelf” resource automatically suitable for the Purchaser’s use in its business. The Purchaser is permitted and expected to Contextualise the Resources for its particular purposes, (Contextualisations). The Purchaser can request CCI to Contextualise the Resources and these services will be charged for separately.
          (b) The Purchaser may remove the branding of CCI from the Resources and substitute its own branding.
          (c) The Purchaser acknowledges that, if the Purchaser Contextualises any of the Resources, CCI is not responsible for whether the Resources as Contextualised comply with any regulatory requirements or satisfy an audit by an official registering body such as ASQA .
          (d) The Purchaser acknowledges that the Resources are general in nature and not created specifically for the Purchaser. The Purchaser must make its own independent judgment regarding the suitability of the Resources for its business and regarding the use of the Resources and any Contexualisations in its business.
          (e) The Purchaser must indemnify CCI and hold it harmless against any liability, loss, damage or expense (including legal costs on an indemnity basis) suffered by CCI arising directly or indirectly from any Contextualisations or other modifications to the Resources made by or on behalf of the Purchaser.
          (f) To the extent permitted by law, and except as otherwise provided in this Agreement, CCI does not give any warranty or guarantee, and limits all liability (including in negligence), arising directly or indirectly in relation to:
          (i) the promotion, supply or use of the Resources or;
          (ii) any services provided by CCI to the Purchaser (including any liability arising from the Purchaser ignoring or acting inconsistently with any advice provided by CCI); or
          (iii) under this Agreement;
          to an amount of two times the Price.
          (g) Clause 5 is subject to any rights of the Purchaser under any law, including the Australian Consumer Law, that cannot be excluded or limited. In these circumstances, if any liability cannot be excluded but may be limited, CCI limits its liability, at its option, to the replacement or amendment of the Resources or the supply of any services again and this clause will apply instead of clause 5(f).

            6. Quality assurance and replacement of units of competency

            (a) CCI is not responsible for the outcome of any audit of the Purchaser or for any other action or inaction of any third party such as ASQA. However, the Price includes a quality assurance guarantee provided by CCI on the following terms:
            (i) If the Resources in the form provided by CCI are found in an audit not to comply with any regulatory requirements, CCI will provide assistance free of charge in order to make the Resources compliant with the auditor's requirements for the purposes of that audit.
            (ii) This assistance only applies to audits conducted by an official registered body such as ASQA.
            (iii) If the Resources are non-complaint because of Contexualisations or other modifications made by or on behalf of the Purchaser, this quality assurance guarantee does not apply and CCI will charge for rectification assistance at its normal rates.
            (iv) To claim on this quality assurance guarantee the Purchaser must provide CCI (details above) with a copy of the audit report that found the Resources to be non-compliant (at the Purchaser's expense), as soon as possible after the audit to allow CCI sufficient time to provide rectification assistance. CCI needs a minimum of 15 Business Days' notice to complete a rectification update to the non-compliant Resources. If the Purchaser fails to allow CCI sufficient time to provide rectification assistance in accordance with this clause, this quality assurance guarantee will no longer apply.
            (v) ASQA may or may not provide an opportunity for rectification if non-compliance is identified in the audit. Unless there is a rectification opportunity after the audit, CCI cannot offer this quality assurance guarantee.
            (b) The benefits of this quality assurance guarantee are in addition to other rights and remedies of the Purchaser under laws relation to the Resources.
            (c) Our goods (Resources) come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure.
            (d) If a unit of competency contained in the Resources is superseded and replaced on the national register of vocational education and training (https://training.gov.au/) CCI will replace that unit of competency free of charge with the replacement unit.
            (e) Nothing in clause 6 (d) obliges CCI to provide any other updates or replacements of any of the Resources free of charge. If the Purchaser requests CCI, and CCI agrees, to provide any other update or replacement of any of the Resources, this will be charged for at CCI's normal rates.

              7. Property

              (a) All Intellectual Property Rights in all Resources are the property of CCI. The Purchaser is not granted any interest in the Resources apart from those specifically granted in this Agreement.
              (b) The Purchaser hereby gives to CCI a non-exclusive, royalty-free, perpetual, irrevocable licence, with the right to sub-license, throughout the world to exercise any Intellectual Property Rights arising from any Contextualisations to the Resources made by or on behalf of the Purchaser.
              (c) The Purchaser must immediately notify CCI if the Purchaser becomes aware that any third party appears to be infringing any Intellectual Property Rights in the Resources or that any third party claims that any of the Resources infringe its rights.

                8. Termination

                Either party may terminate this Agreement with immediate effect if the other party breaches this Agreement and fails to remedy the breach within 7 days of receipt of notice from the first party requiring the breach to be remedied. If, contrary to clause 3, the Purchaser has not paid for the Resources before they are delivered, it must, upon receipt of written notice from CCI requiring payment, immediately pay the Price to CCI. If the Purchaser fails to pay the Price, CCI may terminate this Agreement. Upon termination, the Purchaser must cease all use of the Resources.

                9. General

                (a) This Agreement will be construed in accordance with and governed by the laws of the State of Victoria and the parties submit to the non-exclusive jurisdiction of the courts of the State of Victoria and the federal courts of Australia.
                (b) If the whole or any part of a provision of this Agreement is void, unenforceable or illegal in a jurisdiction, it is severed for that jurisdiction. The remainder of this Agreement will have full force and effect and the validity or enforceability of that provision in any other jurisdiction is not affected. This clause has no effect if the severance alters the basic nature of this Agreement or is contrary to public policy.
                (c) Any waiver by a party in respect of any breach of this Agreement will not be deemed to be a waiver in respect of any other breach or of any subsequent breach.
                (d) This Agreement constitutes the entire agreement between the parties in relation to its subject matter and supersedes all communications, negotiations, arrangements and agreements, whether oral or written, between the parties.
                (e) Any amendment to this Agreement must be in writing and signed by both parties.

                10. Dispute Resolution

                (a) In the event a dispute arises out of or in connection with this Agreement or its validity, the parties must comply with this Dispute Resolution provision before commencing any litigation in relation to the dispute, except where a party seeks urgent interlocutory relief.
                (b) The party claiming a dispute must give the other party written notice of the dispute providing details. The parties must attempt to resolve the dispute through good faith consultation.
                (c) If the dispute is not resolved within 20 days from the date of notice of the dispute, then any or all outstanding issues must be submitted to mediation by a mediator mutually agreed between the parties or, failing agreement, a mediator appointed by the President of the Law Institute of Victoria. The mediation must be held in Melbourne, Victoria. The parties must share the costs of the mediation equally.
                (d) If mediation is not successful in resolving the entire dispute within 30 days of referral to mediation (unless such period is extended by agreement of the parties), any outstanding issues must be submitted to final and binding arbitration by an arbitrator mutually agreed between the parties or, failing agreement, an arbitrator appointed by the President of the Law Institute of Victoria. The arbitration must be conducted in Melbourne, Victoria in accordance with the laws of the State of Victoria. The arbitrator's award will be final, and judgment may be entered upon it by any court having jurisdiction within the State of Victoria.