Didasko International Pty Ltd –
Training Delivery Licence Agreement Terms and Conditions
1.1 To the fullest extent permissible under law including the Australian Consumer Law (ACL) these terms and conditions (Terms) are incorporated into all licence agreements for Didasko International Pty Ltd ACN 146 241 223 (DLR) training software (Software) and accompanying documentation including a Training Delivery Guide (TDG) and Learner Guide (LG). Where the ACL applies to the extent of any inconsistency these Terms or any part thereof will be void and capable of severance without affecting any remaining clauses
1.2 Upon receipt of a review copy (subject to return of review copies under clause 4.5) or by purchasing the product (consisting of CD-ROM, USB Flash Drive or Learning Management System (LMS) or combination thereof) containing the Software and user documentation (and PDF as applicable), the purchasing organisation (Organisation) accepts an offer by DLR for the supply of the Software and accompanying materials.
1.3 Prior to downloading the trial version or purchasing the Software, if these Terms contain anything by which the Organisation does not agree to be bound by, it agrees not to install the Software and return all materials provided by DLR immediately and without delay.
1.4 Where an Organisation has not installed the Software due to the reasons set out under clause 1.3 and is a purchaser with evidence of a receipt, it may return the purchased product together with a copy of the receipt to DLR in its entirety and a full refund of the purchase price subject to any other rights that the Organisation may have under the ACL (if applicable) will be made within 14 days from date of receipt.
1.5 By installing the Software, using and keeping the materials including the TDG, the Organisation confirms that it has purchased the Software and materials subject to these Terms and agrees to be bound by them.
2. Grant of licence
2.1 DLR hereby grants to the Organisation a non-exclusive and non-transferable licence to use the TDG and Software subject to these terms and conditions.
2.2 As a condition of the grant of the licence under clause 2.1, the Organisation agrees to purchase a corresponding Learner Guide (LG) for each and every individual student enrolled with the Organisation within the relevant course using the licensed TDG, in which event DLR grants a licence to the Organisation for the use of the LG on similar terms as clause 2.1.
2.3 The Organisation agrees that the obligations in clause 2.2 are material to the grant of the licence by DLR under clause 2.1 and acknowledges that a TDG is not sold for the purposes of training delivery in isolation and are to only be used expressly in conjunction with the purchase and use of corresponding LG’s as set out herein.
3. Licence fee
3.1 In consideration of the licence, the Organisation shall pay the licence fee to DLR within 14 days after receipt of the Software, TDG and LGs respectively.
3.2 The licence fee is exclusive of all taxes, duties and surcharges payable in respect of the Software and in respect of this agreement.
3.3 If payment is not made within 14 days of the due date, interest will be payable by the Organisation at the rate of two per cent (2%) per annum per calendar month above that as set out from time to time under the Penalty Interest Rates Act 1983 (Vic) or at such other rate as may be fixed from time to time by DLR, such interest to be computed from the date a payment becomes overdue until payment of such monies is received in full. DLR shall be entitled to suspend its remaining obligations under this agreement and to re-possess the Software and other licensed materials.
3.4 In addition to paying the licence fee and any other amount payable or in connection with this agreement (which is exclusive of GST), the Organisation will:
(a) pay to DLR an amount equal to any GST payable from any supply by the supplier in respect of which the licence fee or any other amount is payable under this agreement; and
(b) make such payment either on the date when the licence fee is due or within seven days after the Organisation is issued with a tax invoice, whichever is the later.
4. Registration and purchase
4.1 The Organisation must register before it can start using the Software and TDG via the website located at www.didasko.com, through an authorised reseller/partner or in consultation with one of DLR’s Business Development Managers or Customer Service Team. The Organisation agrees that purchases will be ongoing until otherwise notified.
4.2 Further to clause 2.2, in respect of any TDG unit purchased under this agreement, the Organisation agrees to order and purchase a LG for each and every individual student which will consist of:
(a) Multimedia content supplied by DLR (or an authorised reseller/partner) via CD-ROM, USB Flash Drive or LMS.
(b) A hard copy print version or an actual PDF file supplied by DLR (or an authorised reseller/partner via DLR’s website or via an authorised reseller/partner as a CD-ROM, USB Flash Drive or LMS.
4.3 The Organisation agrees that the printing of an individual LG must align with actual orders placed by the Organisation with DLR.
4.4 At no time shall the Organisation print or copy DLR content for distribution purposes without submitting a corresponding order via DLR’s online ordering system or through an authorised reseller/partner. Failure to submit a corresponding order by the Organisation will represent a breach of these terms and conditions resulting in the immediate termination of the licence.
4.5 The Organisation may access review copies of resources subject to these terms and conditions for 14 days after which time, if not returned to DLR the Organisation will be invoiced at the full price of the resource.
5. Upgrades and Updates
In the event of a product exchange, update or upgrade the licence that has been granted subject to these terms and conditions shall not transfer to the new version or product unless agreed to by DLR via written confirmation or via one of its authorised resellers/partners. All rights in respect of the original product shall lapse and no further use of these shall be permitted.
6. Licence Transfers
The Organisation agrees not to sub-licence, lease, rent or lend the Software, TDG, LG or any user documentation or otherwise transfer or assign any of its rights under these terms and conditions.
7. Term of the Licence
7.1 The term of the licence granted by DLR is ongoing until terminated in accordance with these Terms.
7.2 The Organisation may terminate the licence at any time via formal notification and by destroying the Software and user documentation, together with all copies or by returning them to DLR or an authorised reseller/partner. In the event of termination DLR agrees to either return or destroy all files containing Organisation logos or other branding collateral which may have been provided by the Organisation for the purpose of conducting business with DLR.
7.3 DLR may terminate the licence if the Organisation fails to comply with any of these Terms.
7.4 In the event of termination by DLR the Organisation hereby agrees to destroy the Software, user documentation and all copies or return them to DLR or an authorised reseller/partner.
7.5 The rights of termination of the licence by DLR under these Terms shall be without prejudice to any other rights, including the right to seek injunctive relief, available to it at law.
8. Copyright and Intellectual Property
8.1 All intellectual property rights in the TDG, LG and in the Software and source codes developed or owned by DLR are retained by it.
8.2 Without seeking to exclude or limit the application of the Copyright Act 1968 (Cth) the Organisation shall not copy the Software, TDG or LG, in whole or in part. The Organisation further agrees it shall not directly or indirectly as an officer, employee, agent, contractor or trustee attempt to reverse engineer or reproduce or substantially reproduce the Software in any manner whatsoever hereby licensed to the Organisation.
8.3 The Organisation shall be responsible for protecting the Software and materials including the TDG and LG’s at all times from unauthorised access, use or damage. The Organisation further agrees to use its best endeavours and to take all necessary steps to safeguard the Software to ensure that no unauthorised person has access to the product and that there is no unauthorised copying or distribution of the Software and user documentation.
8.4 Subject to these Terms, upon purchase of a single unit TDG, DLR consents that the Organisation may for the purposes of training delivery only, copy whole or in part the following material:
(a) Training management records, including enrolment details, contact log, training delivery plan, assessment log, practical assessment records, final assessment records, overall results sheets, assessment worksheets, assessment worksheet answers and training assessment plans, competency assessment matrix, evidence of competency record and employability assessment tool.
(b) The Organisation must ensure that all printed material is used for the purposes of training delivery only. Printed materials are non transferable to any other organisation or individual and if used as such would constitute a breach of copyright and these Terms.
8.5 Subject to these Terms, upon receipt of a unit LG in any form, a student may for the purposes of learning print any portion in whole or in part. Each LG as specified above remains the property of the student and cannot be copied or re-printed for re-distribution purposes by the Organisation or student, any such activity will constitute a breach of DLR’s intellectual property rights and these Terms.
8.6 The Organisation agrees that it shall not use any registered or unregistered trademarks, logos or emblems of DLR in respect to the use of the Software, TDG or LG without the prior written consent of DLR and then only upon the terms stipulated by DLR.
9. Limited Warranty and Disclaimer
9.1 DLR warrants that the media on which the Software is recorded and the user documentation provided with it are free from defects in materials and workmanship under normal use for a period of 14 days from the date of original purchase.
9.2 Except for the limited warranty as outlined above and subject to any statutory terms which cannot be excluded varied or modified, the Software is sold “as is” and subject to the ACL (if applicable) the Organisation assumes the entire risk as to its quality and performance. It remains at all times the responsibility of the Organisation to verify the results obtained from the use of the Software at its own cost.
9.3 If during the 14 day limited warranty period, the Organisation notifies DLR in writing of any physical defects in the user documentation or in the media on which the Software was recorded apart from any other rights the Organisation may have including those under the ACL (if applicable), DLR shall at its own expense, commence to examine the Software and, as soon as practicable thereafter, rectify the defect or replace the Software provided the items to be replaced are returned with proof of purchase to it or an authorised reseller/partner. USB Flash Drives will not be replaced in the event that the user modifies/deletes/moves any source files provided by DLR.
9.4 The above warranty:
(a) is subject to the Organisation having fully complied with its obligations under these Terms;
(b) is not a warranty that the results obtained from the Software will be in accordance with the customer’s expectations; and
(c) does not operate where the substantial non-performance arises in any respect from the installation of the Software, the nature or operation of the equipment on which the Software is used or the use of any materials or Software not provided by the supplier.
10. Limitation of Liability
10.1 If the goods and/or services are supplied to the Organisation as a “consumer” as defined in the ACL, then the Organisation has the benefit of certain consumer guarantees, non-excludable rights and remedies in respect of those goods and/or services (Consumer Rights) and nothing in these Terms shall exclude, restrict or modify any Consumer Rights:
a) The Organisation acknowledges and agrees that if it is a ‘consumer’ under the ACL then
(i) its right to make any claim(s) for any loss or damage sustained by the Organisation and/or any third parties shall be limited to the Consumer Rights;
(ii) the liability of DLR for failure to comply with a consumer guarantee in relation to the supply of goods and/or services will be limited to that set out under s64A of the ACL;
b) To the fullest extent possible under law including the ACL (if applicable), DLR shall not be liable for any errors or omissions resulting from the Organisation’s failure to sign off on any of the goods and/or services; and/or any claim in any way caused and/or contributed to by the Organisation or any of its employees or servants;
10.2 If any services and/or goods are supplied to the Organisation and it is not a ‘consumer’ as defined under the ACL and the goods and/or services provided are other than of a kind ordinarily acquired for personal, domestic or household use or consumption, then
(a) the liability of DLR for a breach of a condition or warranty under these Terms is limited to -
(i) if the breach relates to goods:
- the replacement of the goods or the supply of equivalent goods;
- the repair of such goods;
- the payment of the cost of replacing the goods or of acquiring equivalent goods; or
- the payment of the cost of having the goods repaired; and
(ii) if the breach relates to services:
- the supplying of the services again; or
- the payment of the cost of having the services supplied again.
(b) Save as expressly provided for under these Terms and to the fullest extent possible under law, DLR shall not be liable to the Organisation or its servants, agents or representatives for any direct, indirect, incidental or consequential loss or damages of any nature however caused (whether based on tort including negligence, contract or otherwise) including but not limited to loss of profits, loss of production, loss of sales opportunity or business reputation, direct or indirect labour cost and overhead expenses and damage to equipment or property or any other claim whatsoever arising directly or indirectly or in any way attributable to the performance of DLR under these Terms and in no event shall any claim be recognized unless the claim is in writing and received by DLR within fourteen (14) days of the date of Delivery.
11. Liability for consequential loss
11.1 The Organisation acknowledges that the Software licensed by DLR is not of a kind ordinarily acquired for personal, domestic or household use or consumption.
11.2 Subject to any statutory provision to the contrary including the ACL (if applicable), in the event DLR is in breach of these Terms it shall not be liable for any consequential loss including economic loss and the liability of DLR shall at all times be limited to the replacement of the Software or the supply or equivalent Software or the repair of the Software or the payment of the cost of replacing the Software or of acquiring equivalent Software and subject to any relevant provisions of the ACL (if applicable), DLR may elect any one of the limited forms of compensation to the exclusion of others set out therein.
11.3 The Organisation acknowledges that the provisions of this clause are fair and reasonable.
11.4 Subject to the provisions of this clause and the ACL (if applicable) DLR will not be liable to the Organisation or any person for any direct, indirect, special, incidental, consequential or similar damages, even if DLR has been received notice or been advised of the possibility of such damages.
12. Insolvency & Default
If the Organisation commits or is involved in any act of insolvency the Client shall be deemed to be in default under these Terms in which event DLR \
a) may take whatever action is necessary to retain all monies paid, cease further deliveries and/or provision of goods and/or services, recover all lost profits and/or at its discretion take immediate possession of any goods not paid for without prejudice to any other rights and without being liable in any way to any party;
b) An act of insolvency is deemed to include the appointment of any insolvency practitioner and the calling of any formal meeting of creditors.
To the extent permissible under law including the ACL (if applicable) these Terms shall be governed by and construed in accordance with the laws for the time being in force in the State of Victoria, Australia and the parties agree to submit to the jurisdiction of the courts and tribunals of that State.
Any dispute or difference whatsoever arising in connection with this agreement shall be submitted to mediation in accordance with and subject to the Law Institute of Victoria’s Code of Practice for Mediation.