LEARNING QUEST END USER LICENCE

IMPORTANT: PLEASE READ THIS DOCUMENT CAREFULLY BEFORE LOGGING ON TO THE LEARNING QUEST PORTAL FOR THE FIRST TIME OR IF REQUESTED WHEN ACCESSING OR USING ANY LICENSED CONTENT, FOLLOWING A CHANGE TO YOUR SUBSCRIPTION. EACH TIME YOU LOG ON OR ACCESS OR USE THE SYSTEM YOU ARE DOING SO ON THE BASIS THAT YOU AGREE TO THESE TERMS AND CONDITIONS, AND YOU WILL CREATE A LEGALLY BINDING CONTRACT BETWEEN YOU (AS A USER OF THE SYSTEM) AND LEARNING QUEST PTY LTD (abn 30 105 947 911) (LQ), THE OWNER OF ALL OF THE RIGHTS IN THE SYSTEM AND ALL CONTENT MADE AVAILABLE THROUGH OR AS PART OF THE SYSTEM.

IF YOU DO NOT AGREE TO THE TERMS OF THIS LICENCE, YOU ARE NOT ENTITLED TO, AND MUST NOT, ACCESS OR USE THE SYSTEM OR ANY CONTENT.

This licence grants a user a right to access and use the System for the term of the Subscription Period, subject to the limitations of this licence.

This licence does not include any services, including any System troubleshooting, setup or support, or any training or content development consultancy services. You must enter into a separate arrangement with LQ, and pay additional fees, to receive any services.

Once accessed for the first time, you are only entitled to the re-supply or replacement of any Licensed Content or any other services that are supplied as part of the System, or replacement or refund of any fees (at LQ’s election) if there is a breach of a consumer guarantee under the Australian Consumer Law.

LICENCE TERMS

This licence gives You certain limited rights to access and use the System, the Licensed Content and the Documentation. You do not become an owner of or have any proprietary rights (other than the rights under this licence) in the System, any Licensed Content or Documentation or of any Intellectual Property Rights that subsist in the System, any Licensed Content or Documentation, which are all retained by LQ.

Subject to the payment to LQ of the relevant licence fee (whether by You or by a Client) and, where relevant, subject to:

(a) Your Access Code is and remains for the Subscription Period authorised under the terms of a Client Agreement to access the Portal and the Licensed Content;

(b) Your access as an active user of a Client is within the maximum number of active users included in the Client’s Subscription,

LQ grants You a non-exclusive right to access and use the Portal and the Licensed Content and, where indicated, reproduce Licensed Content in the manner specified, for example, by downloading, in accordance with any specific terms applicable to particular Licensed Content, for the Subscription Period, on the terms and conditions of this licence.

The Subscription Period starts on the day You obtain or are provided with an authorised Access Code to the Portal (“Start Date”) and, if not terminated earlier pursuant to the terms of this licence or extended by the payment of further licence fees or the extension of the relevant Client Agreement, ends on the End Date.

You may use the System only under the conditions and on an operating system for which the System is designed, as listed on the LQ website or the Documentation during the Subscription Period and, in particular, must abide by any security and intellectual property policies and requirements. You must act in accordance with any instructions or directions that we may give to You regarding the System.

Any right that You may have to the System, including any Licensed Content, or Documentation, ends immediately and without the need to give any further notice, at the end of the Subscription Period.

You must use Your best endeavours to ensure that there is no unauthorised access to or use of the System, any Content that is not Licensed Content or the Documentation. You are responsible for keeping

Your Access Code and account numbers confidential. You must not use anyone else’s Access Code or provide or disclose your Access Code to anyone else and You must not authorise any other person to access

or use the System, any Content that is not Licensed Content or the Documentation. You are responsible for the actions of any person who uses your Access Code.

You continually indemnify LQ against any claim or proceeding that is made or commenced, and any liability, loss, damage or expense (including legal costs on a full indemnity basis) LQ suffers or incurs arising from Your use of the System, a breach of this licence or a negligent or unlawful act or omission by You or on Your behalf.

You access the System using a browser, over an Internet connection. That connection is not maintained or controlled by LQ and we have no ability to ensure that the connection is available when required or will remain uninterrupted. LQ also cannot control or guarantee the integrity or accuracy of any data transmitted via that connection. Accordingly, LQ is not liable for any suspension, interruption temporary unavailability, loss of data or fault occurring in providing the System to You or any of the consequences which may flow from these events.

LQ does not give any warranty in relation to the System or its performance. To the full extent permitted by law, LQ disclaims all warranties, either express or implied, including any warranties of merchantability, fitness for a particular purpose or that You will be able to access or use the System uninterrupted, fault free or at all.

Where any legislation such as the Australian Consumer Law implies into this licence any condition or warranty and that legislation voids or prohibits conditions in a contract excluding the application of the condition or warranty, the liability of LQ for any breach of the condition or warranty is limited, at LQ’s option, to each of the following:

In the case of services:

  • resupplying the services.
  • the cost of having the services resupplied.
  • In the case of goods:
    • replacing the goods.
    • repairing any defect in the goods.
    • the cost of replacement of the goods.
    • the cost of repair of any defect in the goods.

You acknowledge that all rights in the System remain the property of LQ. All right, title and interest (including copyright) in any amendments, additions or enhancements to or further developments of the System and in any related Documentation that may be provided or made available to You by LQ are also owned by and vest exclusively in LQ.

Subject only to clause 2, You must not duplicate or alter, disassemble, de-compile, reverse engineer, or create a derivative work with the same “look and feel” or otherwise use the System except as stated in this licence.

You must not remove, obliterate, make illegible, amend or otherwise tamper with any notice or statement on or incorporated into the System, any Content or Documentation as to the ownership of rights in the System, Content or Documentation, or the existence or terms of this licence.

You must not lend, give, rent, lease, or transfer access to the Portal or any Licensed Content or Documentation to any person during or following the end of the Subscription Period without the prior written consent of LQ. You must not use, for any reason, and in any way, any Licensed Content following the end of the Subscription Period.

LQ reserves the right to withhold access to the System where any fees or other money due to LQ are unpaid for any reason. You are not entitled to any refund or credit of fees paid for any period of suspension of access.

LQ may terminate this licence without any refund of fees paid if You fail to comply with the terms of this licence, an Insolvency Event occurs in respect of you or, where relevant, the Client notifies LQ that You are no longer employed by the Client or otherwise no longer entitled or authorised to access the System under the Client Agreement. Any accrued rights and remedies of a party survive termination or expiry of this licence.

Any use of the System otherwise than in accordance with this licence is an infringement of LQ’s Intellectual Property Rights, as well as a breach of contract, entitling LQ to take action against You to stop the use continuing, and to recover, at its option, the damages it has suffered or the profits You have made, as a result of those infringements.

These terms constitute the entire agreement between You and LQ.

You may not assign this licence without written permission from LQ.

The non-exercise of or delay in exercising any power or right of a party does not operate as a waiver of that power or right, nor does any single exercise of a power or right preclude any other or further exercise of it or the exercise of any other power or right. A power or right may only be waived in writing, signed by the party to be bound by the waiver.

If any of these terms is unenforceable, the remainder of the terms continue to apply.

This licence is governed by the laws of New South Wales and the parties submit to the non-exclusive jurisdiction of the courts located in that State.

In this licence, unless the context otherwise requires:

(a) Access Codes means the unique user name or identification, password and any other means used or required to obtain access to the System.

(b) Client means a third party with whom You have a relationship of employment or other similar connection who has requested LQ to provide it with certain services.

(c) Client Agreement means an agreement between a Client and LQ in relation to the System or services provided by LQ, including the System.

(d) Content means all of the documents, files, photographs, images, audio files, video files and any other material or thing, whether or not in human readable form and whether or not in a non-volatile memory or state, stored at or accessible through or using the Portal

(e) Documentation means any manual or other documentation provided by LQ or accessible through the System that provides instructions or assistance in connection with the access to and use of the System.

(f) End Date means the date on which the Subscription ends or is terminated.

(g) Insolvency Event means the happening of any of these events:

In relation to a natural person:

i. the person dies or becomes mentally or physically incapable of managing his or her affairs or an order is applied for or made to place the assets and affairs of the person under administration pursuant to any law relating to mental health or under any administration;

ii. an order of bankruptcy or sequestration of the person’s estate; or

iii. a trustee in bankruptcy is appointed to the person’s estate or any agent (by whatever name called) is appointed in respect of the person or any assets of the person.

In relation to a corporation:

iv. an order is made that the corporation is to be wound up;

v. an external administrator (by whatever name called) is appointed or any action is taken for the appointment in relation to the corporation or any of its assets;

vi. the corporation resolves to wind itself up or otherwise dissolves itself, or gives notice of intention to do so; or

vii. being unable to pay its debts as when they fall due.

(h) Intellectual Property Rights includes each of the following in Australia and throughout the world and for the duration of the rights:

i. Any patents, innovation patents, utility models, copyrights, registered or unregistered trade marks or service marks, trade names, brand names, domain names, indications of source or appellations of origin, eligible layout rights, plant variety rights, registered designs and commercial names and designations.

ii. Any invention, discovery, trade secret, know-how, computer software and confidential, scientific, technical and product information.

iii. Any other rights resulting from intellectual activity in the industrial, scientific, literary and artistic fields whether industrial, commercial, agricultural or extractive and whether dealing with manufactured or natural products.

iv. Any letters patent, deed of grant, certificate or document of title for any thing referred to in paragraphs (i), (ii) or (iii) of this definition and any medium in which any thing referred to in those paragraphs is stored or embodied.

(i) Licensed Content means the Content identified in a Subscription as relevant to, or able to be accessed in connection with, the Subscription.

(j) Portal means the secure LQ website at the URL [INSERT] with which communication and authentication occurs using Hypertext Transfer Protocol within a connection encrypted by Transport Layer Security or Secure Sockets Layer security.

(k) Subscription means:

i. a Client Agreement; or

ii. an agreement between LQ and You pursuant to which You have paid a licence fee to access the System.

(l) Subscription Period means the period for which licence fees have been paid under a Subscription and during which You are licensed to access and use the System.

(m) System means the Portal and any Licensed Content.

In interpreting this licence, unless the context otherwise requires, the following rules apply:

(a) the singular includes the plural and vice versa, and a gender includes the other gender and neuter;

(b) another grammatical form of a defined word or expression has a corresponding meaning;

(c) a reference to a clause, paragraph, schedule or annexure is to a clause or paragraph of, or schedule or annexure to, this licence, and a reference to this licence includes any schedules and annexures;

(d) a reference to a document or instrument includes the document or instrument as novated, altered, supplemented or replaced from time to time;

(e) a reference to party includes the party’s executors, administrators, successors and permitted assigns and substitutes;

(f) the meaning of general words is not limited by specific examples introduced by including, for example or similar expressions;

(g) a rule of construction does not apply to the disadvantage of a party because the party was responsible for the preparation of this agreement or any part of it;

(h) headings are for ease of reference only and do not affect interpretation.