ESKILLED PTY LTD
A. The Customer is an organisation that delivers training to students enrolled in its courses.
B. eSkilled has the right to provide the Customer access and use of the Cloud-based Software.
C. eSkilled is the owner of the copyright in eSkilled Resources or has obtained the right from a third party to provide the Customer rights to use eSkilled Resources.
D. The Customer seeks use of the Cloud-based Software.
E. The Customer seeks to access, adapt and use eSkilled Resources as training materials for its students, and/or access and use the Cloud-based Software to deliver Courses to its students.
F. eSkilled agrees to grant the Customer use of the Cloud-based Software on the terms set out in this Service Agreement.
G. eSkilled agrees to grant the Customer a non-exclusive right to access, use and adapt eSkilled Resources and eSkilled Courses on the terms of this Agreement.
1.1 In this Agreement, unless context otherwise requires, the following words have the corresponding meanings:
a. Adapt means to contextualise to suit the requirements of the Customer for the purpose of delivering VET services to Students across their learner cohorts, learning environments, delivery and assessment methods and industry contexts, and to ensure compliance with ASQA’s regulations, but Adapt does not mean to reverse engineer or reproduce any part of eSkilled Courses or eSkilled Resources. Adapted and Adaptation have corresponding meanings.
b. Agreement means this Service Agreement as amended pursuant to Clause 10 and including the Recitals and Schedules to it.
c. Anniversary Date means the date that is 12 months from the Commencement Date, or such date as may be agreed between the Parties and specified in Item 4 of Schedule 1.
d. ASQA means the Australian Skills Quality Authority.
e. Australian Consumer Law means Schedule 2 to the Competition and Consumer Act 2010 (Cth).
f. Business Day means a day, other than a Saturday, Sunday or gazetted public holiday in Brisbane in the State of Queensland, Australia.
g. Cloud-based Software means the software specified as authorised for use in Item 12 of Schedule 1.
h. Commencement Date means the date specified in Item 3 of Schedule 1.
i. Course means an area in the Cloud-based Software with resources and activities for students to complete. A webpage that may contain downloadable documents, SCORM files, quiz questions, online assessment tasks, or other activities where the learner progresses through interaction with the learning resources and activities.
j. Course Catalogue means the list of available courses that can be accessed and used by the customer in the LMS. eSkilled’s complete course catalogue can be accessed at https://eskilledlms.com.au/training-resources/.
k. Customer means the entity in Item 2 of Schedule 1.
l. Customer Resources means all other learning materials, assessments and other related information and documents, except those supplied by eSkilled
m. Data means any data belonging to the Customer or that the Customer is permitted to use, that the Customer inputs into the Cloud-based Software or otherwise provides to eSkilled for the purpose of delivering the Service.
n. Data Storage Limit means the maximum amount of Data that can be stored before Excess Data Storage Fees are charged under the terms of this Agreement, as set out in Item 7 of Schedule 1, counted as the highest recorded Data Usage on any day of a calendar month. Data storage usage is rounded up to the nearest Gigabyte.
o. Enrolment means a unique user enrolled as a student in any course or program in the Cloud-based Software.
p. eSkilled means eSkilled Pty Ltd A.C.N. 635 775 656.
q. eSkilled Resources means the learning materials, assessments and other related information and documents which form an eSkilled Course, as supplied by eSkilled.
r. eSkilled Course means each bundle of eSkilled Resources that makes up a course in the Cloud-based Software over which the rights is granted.
s. Excess Data Storage Fee means the sum of money in Item 9 of Schedule 1, being the sum payable per calendar month for storage of data in excess of the Data Storage Limit. The Excess Data Storage Fee is payable monthly. Unless otherwise specified, the Excess Data Storage Fee includes GST.
t. Extra Unique Student Fee means the fee specified in Item 10 of Schedule 1, payable for each Unique Student once the Included Unique Students Per Year have been exceeded.
u. Fee means the sum of money in Item 5 of Schedule 1, being the sum payable for the Service for the Term. The Fee is payable monthly or annually, as specified in Item 5 of Schedule 1. Unless otherwise specified, the Fee includes GST.
v. Force Majeure Event means:
i. a tsunami, flood, cyclone, earthquake, bushfire or other act of nature;
ii. riot, civil commotion, war, invasion or a terrorist act;
iii. interruptions to access to the Website or Cloud-based Software, due to failure of the internet or third-party software, hardware, or an emergency or planned outage; or
iv. an imminent threat of an event in paragraphs i to iii.
w. Gigabyte means one gigabyte or one billion bytes of Data as reported by the Cloud-based Software.
x. GST means goods and Services tax under the A new Tax System (Goods and Services Tax) Act 1999 (Cth) and other related legislation.
y. Included Unique Students Per Year means the number of Unique Students, as set out in Item 6 of Schedule 1 that are included in the Fee for the Term. If the number of Included Unique Students Per Year is exceeded during the Term, the Extra Unique Student Fee specified in Item 10 of Schedule 1 is charged to the Customer for every excess Unique Student.
z. Index Number means the Consumer Price Index (All groups) for Brisbane published from time to time by the Australian Statistician; if the Australian Statistician updates the reference base of the Index Number, the Index Number will be appropriately adjusted so as to preserve the intended continuity of calculation by using the appropriate arithmetical factor determined by the Australian Statistician;
aa. Intellectual Property Rights means any rights of eSkilled or other person in any trademarks, patents, logos, designs and copyright material, software and any other forms, documents, improvements, trade secrets, technical data, computer programs and data bases associated with the Cloud-based Software.
bb. Right means the non-exclusive right granted to the Customer by Clause 2 of this Agreement to access and Adapt eSkilled Resources and eSkilled Courses for the purpose of delivering VET services to Students.
cc. LMS or Learning Management System means a web-based software application used to plan, implement, deliver and assess specific courses or learning programs for students, including all upgrades and versions at the domains eskilledrtosoftware.com.au, eskilled.com.au, eskilledlms.com.au, rto.net.au, eskilledrtoresources.com.au, e-learnme.com.au or any other domain operated by eSkilled.
dd. Maximum No. of Included eSkilled Courses means the maximum number of eSkilled Courses the Customer can have accessible to their students in their LMS, as specified in Item 13 of Schedule 1. The Customer is limited to the selection of eSkilled Courses published as available in eSkilled’s Course Catalogue
ee. Notifiable Data Breaches Scheme means the scheme established under the Privacy Act 1988 (Cth) requiring the reporting of eligible data breaches to affected individuals and/or the Office of the Australian Information Commissioner.
ff. Other Fees means the sum of money in Schedule 2, being the sum payable for any other product or Service requested by the Customer. Unless otherwise specified, Other Fees includes GST.
gg. Onboarding Training means live, interactive webinars for the total duration set out in Schedule 1, which provides an overview of:
i. the key functions and features of the Cloud-based Software;
ii. how to insert the Customer’s name and logo into the Cloud-based Software;
iii. how to enrol Students;
iv. how to access user guides;
v. course structure set up and editing process;
vi. how to access student results and completion reports; and
vii. using templates in the Cloud-based Software.
viii. Setting up and producing Certificates and Statement of Attainment
hh. Program means a group of courses in the Cloud-based Software
ii. Resources means the learning materials, assessments and other related information and documents which form a Course.
jj. RTO means Registered Training Organisation registered by National Vocational Education and Training regulator of Australia to deliver VET Services.
kk. Service means the service provided by eSkilled to the Customer as outlined at Clause 2 of this Agreement to access and use the Cloud-based Software for the purpose of delivering VET Services to Students.
ll. Setup Fee means the sum of money in Item 8 of Schedule 1, being the sum payable for initial setup of the Cloud-based Software. Unless otherwise specified, the Setup Fee includes GST.
mm. SMS or Student Management System means the software, owned by eSkilled, which is software for education institutions/registered training organisations to manage courses, students, agents, trainers, and administrators. The student management system provides capabilities for registering users, enrolling students in courses, documenting grading, producing certificates and statements of attainment. It also records training timetables and schedules; tracks student attendance; generates reports and stores student and RTO data.
nn. Student means a student of the Customer, who is or is intended to be given access to the Cloud-based Software for the purpose of undertaking training.
oo. Support Policy means the document titled ‘eSkilled Support Policy’ as amended from time to time and published on the Website at the following address: https://eskilledrtosoftware.com.au/support-policy/.
pp. Term means a period of twelve (12) months from the Commencement Date or as amended under Clause 7.
qq. User means a student, trainer, assessor, administrator, contractor, agent, or any other person provided access to the Cloud-based Software by the Customer.
rr. Unique Student means a unique user enrolled in a course or program, where the course start date falls within the Term. To be clear, if a user enrols in more than one (1) Course or Program that has a start date within the Term, they are only counted as one (1) Unique Student for that Term.
ss. VET means Vocational Education and Training.
tt. Website means the internet site at the domains eskilledrtosoftware.com.au, eskilled.com.au, rto.net.au, e-learnme.com.au, eskilledlms.com.au, eskilledrtoresources.com or any other domain operated by eSkilled.
1.2 Unless the context otherwise provides:
a. The singular includes the plural and vice versa and words of one gender include the other gender;
b. Where two or more persons are named as a party to this Agreement, the representations, warranties, covenants, obligations and rights given, entered into or conferred (as the case may be), bind them jointly and each of them severally;
c. A reference to any party to this Agreement or any other document or arrangement includes that party’s successors, substitutes, permitted assigns, executors and administrators;
d. A reference to any Agreement or document is to that Agreement or document (and where applicable, any of its provisions) as varied, amended, novated, supplemented, or replaced from time to time;
e. If the day on or by which a person must do something under this Agreement is not a Business Day, the person must do it on the next Business Day;
f. A reference to “dollars” or “$” in this Agreement means the currency of Australia;
g. A reference to any legislation or legislative provision includes any statutory modification or re-enactment of, or legislative provision substituted for, and any subordinate legislation issued under, that legislation or legislative provision. Any general reference to “Statute” or “Statutes” includes any regulations or orders made under the Statute or Statutes;
h. The meaning of general words is not to be limited by the meaning of accompanying specific words;
i. A reference to an individual or person includes a company, corporation, partnership, firm, joint venture, association (whether incorporated or not), body, authority, trust, state, or government and vice versa; and
j. Where an expression is defined, another part of speech or grammatical form of that expression has a corresponding meaning.
2.1 In consideration for the Fee, eSkilled grants the Customer non-exclusive rights to:
a. access and use the Cloud-based Software;
b. Enrol Unique Students in courses in the Cloud-based Software, up to the number of Included Unique Students Per Year. Once the Included Unique Students Per Year are exceeded the Extra Unique Student Fee will be charged.
c. access eSkilled Courses up to the Maximum No. of Included eSkilled Courses as specified in item 13 of Schedule 1
d. adapt eSkilled Resources;
e. add Customer Courses and Customer Resources to the Cloud-based Software;
f. enrol Students in eSkilled Courses and Customer Courses;
g. print eSkilled Resources;
for the Term and on the terms and conditions set out in this Agreement.
3.1 eSkilled will:
a. provide the Customer with access to the Cloud-based Software;
b. provide the Customer with access to eSkilled Courses up to the Maximum No. of Included eSkilled Courses as specified in item 13 of Schedule 1;
c. enable the Customer to enrol Students in the Customer Courses and eSkilled Courses;
d. provide the Onboarding Training to the Customer;
e. enable the Customer to enrol Students in eSkilled Courses;
f. take reasonable steps to maintain appropriate protections for any Data provided to it by the Customer; and
g. comply with the Notifiable Data Breaches Scheme, where necessary.
3.2 eSkilled warrants that the Customer’s use of eSkilled Resources to deliver VET services to Students will not infringe the rights, including Intellectual Property Rights and/or moral rights, of any third party.
3.3 If the ASQA by audit identify a deficiency in an eSkilled Resource designed to assess a Student’s competency and supplied by eSkilled, then within 21 days of being provided with a copy of the official ASQA audit report, eSkilled will provide reasonable assistance to the Customer to enable the Customer to rectify the identified deficiency.
3.4 Clause 3.3 does not apply:
a. if the Customer is in breach of Clause 4;
b. to any Adaptations, updates, changes or modifications to eSkilled Resources that have not been undertaken by eSkilled; or
c. where eSkilled has made available an update or modification to eSkilled Resources (including for an additional fee) and the Customer has failed to implement the update or modification.
d. to any Customer Resources or Customer Courses.
4.1 The Customer must:
a. pay the Fee, Setup Fee, and any Other Fees to eSkilled on demand or in advance at the frequency set out for the relevant fee in Schedule 1;
b. comply with any policies published by eSkilled on the Website, including those relating to privacy, use of confidential information, use of eSkilled Resources, or use of the Cloud-based Software;
c. adapt eSkilled Resources and ensure, by conducting independent validation, that eSkilled Resources as Adapted are compliant with the requirements of any regulatory authorities, including ASQA, prior to utilising them for the delivery of VET training;
d. not reverse engineer or reproduce any part of eSkilled Courses or eSkilled Resources, or attempt, permit or cause any part of eSkilled Courses or eSkilled Resources to be reverse engineered or reproduced, whether directly or indirectly;
e. not print, copy or distribute the Adapted eSkilled Resources, or permit eSkilled Resources to be printed, copied or distributed, except:
i. that each Student may print the Adapted eSkilled Resources once for each eSkilled Course that they are enrolled in;
ii. that an officer or employee of the Customer may print eSkilled Resources for provision to a Student once for each eSkilled Course that the Student is enrolled in; or
iii. with eSkilled’s prior written consent;
f. protect eSkilled Resources against unauthorised access, use or damage, including by:
i. advising Students that they are not to share eSkilled Resources with any third party;
ii. advising employees, officers, Students and any other person authorised to access the Cloud-based Software not to share eSkilled Resources or their password with any other person;
g. not assign the Service to any other person, or otherwise transfer, sell, charge or encumber the Service, except that the Customer may charge a fee to Students that are enrolled in eSkilled Courses or Customer Courses for the purpose of receiving VET services;
h. not transfer the Service to a non-eSkilled learning management system or other learning management or file distribution system;
i. protect the Cloud-based Software against unauthorised access, use or damage, including by:
j. protect the Cloud-based Software against unauthorised access, use or damage, including by:
i. advising employees, officers, Students and any other person authorised to access the Cloud-based Software not to share their password with any other person;
k. not post or transmit any material through the Cloud-based Software or related websites that:
i. is unlawful, abusive, defamatory, threatening, obscene, or breaches, limits or infringes upon a person’s privacy or other rights;
ii. encourages the commission of an offence;
iii. creates or gives rise to a civil liability;
iv. violates any law of the Commonwealth of Australia or of any State or Territory of Australia;
l. not use the Cloud-based Software in a way that prevents any other person from utilising the Cloud-based Software, eSkilled Courses or eSkilled Resources;
m. not generate unsolicited emails or advertisements or engage in religious, political or other solicitation.
n. not transmit or upload a virus, worm, trojan horse or any other malicious software or harmful code;
o. not gain or attempt to gain access to parts of the Cloud-based Software that the Customer is not authorised or entitled to access;
p. not change eSkilled Resources, except to Adapt them, provided that each such change is clearly identified by words such as “Adapted by [Customer] on [date];
q. not claim it is, hold itself out as, or engage in any conduct or make any representation the effect of which would suggest that it is, the agent of eSkilled;
r. ensure that eSkilled Resources and Cloud-based Software is not subjected to any treatment that is prejudicial to the reputation of eSkilled or that infringes the moral rights of the author of eSkilled Resources;
s. ensure that all copies of eSkilled Resources made, printed, published, reproduced, Adapted or otherwise disseminated by the Customer, including in electronic form, will bear whatever proprietary statement is required by eSkilled including the copyright symbol ©;
t. if the Customer becomes aware of any legal proceedings, threat of legal proceedings or claim which may involve the Cloud-based Software, and/or eSkilled Resources including any infringement of Intellectual Property Rights through the provision of the Rights or the use of eSkilled Resources, the Customer must:
i. advise eSkilled of the proceedings, threat or claim;
ii. keep eSkilled fully informed of the progress of any such proceedings, threat or claim;
iii. provide eSkilled with copies of any and all documents, including legal advice, eSkilled requests from the Customer relating to the proceedings, threat or claim;
iv. not oppose any steps taken by eSkilled to join or respond to the proceedings, threat or claim;
v. not settle such proceeding, threat or claim without the consent of eSkilled;
u. upon termination of the Service and in any event by 5.00pm on the Termination Date destroy or return eSkilled Resources in its possession, and any copies of eSkilled Resources it may hold electronically or otherwise.
5.1 The Customer acknowledges that:
a. where eSkilled or another third party is the owner of the copyright in eSkilled Resources that ownership of the copyright will remain vested with eSkilled or that third party throughout the Term;
b. eSkilled Resources have been developed to be generic and flexible in their application across a range of learner cohorts, learning environments, delivery and assessment methods, and industry contacts, and as such will require Adaptation prior to use for VET training;
d. the Service and rights to use eSkilled Resources is non-exclusive, which means that eSkilled may service and provide rights to other persons without seeking permission or consent of the Customer;
e. eSkilled will provide support in accordance with the Support Policy;
f. eSkilled will not assist the Customer with transferring or inputting any Data to the Cloud-based Software, unless otherwise agreed by eSkilled in writing;
g. eSkilled will not assist the Customer with transferring or inputting any Resources or Courses to the Cloud-based Software, unless otherwise agreed by eSkilled in writing;
h. any suspected fraudulent, abusive or unlawful activity may be disclosed to an appropriate authority;
i. there are inherent risks in transmitting data and dealings over the internet, and that from time to time, access to the Cloud-based Software may be interrupted, including because of a Force Majeure Event; and
j. utilising the Cloud-based Software involves the transmission of Data to and by eSkilled over networks not owned by eSkilled, and that eSkilled is not responsible for any data loss, alteration, interception or other failure of any sort.
k. if the Customer exceeds the Maximum Data Limit for a month, they must pay the Excess Data Storage Fee for that month.
l. if the Customer exceeds the Included Unique Student Enrolments Per Year, they must pay the Extra Unique Student Fee.
m. the Customer consents to eSkilled retaining logs of the Customer’s activity, including logs of Students and other users, in the LMS or SMS.
5.2 The Customer warrants that:
a. it has not relied upon any representation made by eSkilled other than as set out in this Agreement;
b. it is solvent;
c. the contact information in Item 2 of Schedule 1 is accurate;
d. it has independently verified that it has all relevant technology systems required to utilise the Cloud-based Software; and
e. it has obtained all necessary rights and permissions to provide Data to eSkilled, and that the provision of the Data to eSkilled does not violate any law or rights of any third party, including intellectual property rights or rights to privacy.
f. it has obtained all necessary rights and permissions to use all Resources, and that the addition of the Resources to the Cloud-based Software does not violate any law or rights of any third party, including intellectual property rights.
6.1 To the fullest extent permitted by law, eSkilled expressly disclaims all implied warranties and conditions including without limitation implied warranties as to merchantability and fitness for purpose of the Cloud-based Software and eSkilled Resources.
6.2 If the Customer is entitled to seek redress for any failure or breach of the Australian Consumer Law, the remedy available to the Customer is limited to the repair or the replacement of the eSkilled Resource with an equivalent eSkilled Resource. The Customer will not be entitled to receive a refund of monies paid to eSkilled unless eSkilled is unable to remedy the failure within a reasonable time or the nature of the failure is such that it cannot be remedied by the replacement or repair of the eSkilled Resource supplied to the Customer (for example as a result of a defect in title).
6.3 If the Customer is not entitled to seek a redress under the Australian Consumer Law:
a. the remedy available to the Customer for any failure or breach of Guarantee or Warranty or any defect is limited to the repair or the replacement of the defective eSkilled Resource with an equivalent eSkilled Resource; or
b. if a replacement will not cure the failure or defect, then the remedy available to the Customer is, in eSkilled’s sole discretion, a credit for eSkilled Course to which the eSkilled Resource related, or a refund of the sum paid by the Customer to eSkilled for eSkilled Course, for each Student enrolled in eSkilled Course.
6.4 To the fullest extent permitted by law, eSkilled excludes all liability for indirect or consequential loss including loss of revenue, loss of profits, loss of goodwill, failure to realise expected profits or savings and any other commercial or economic loss of any kind arising access to, and use of the Cloud-based Software and eSkilled Resources by the Customer or Students.
6.5 eSkilled is not liable for use of the Cloud-based Software or eSkilled Resources by the Customer that is not in accordance with the Standards for Registered Training Organisations (RTOs) 2015 as amended, updated, or replaced from time to time.
6.6 eSkilled will not be responsible for any interruption to access or use of the Cloud-based Software and eSkilled Resources or any loss of Data as a result of a Force Majeure Event or action of a third party, including data loss caused by malicious software or viruses, or unauthorised access or use of the Data or Cloud-based Software by a third party.
6.7 The Customer indemnifies, and promises to keep indemnified, eSkilled against any loss, claim, action, settlement, award, judgment, expense, or damage that eSkilled might suffer as a result of or incidental to the Customer’s use (whether or not such use is authorised) of the Cloud-based Software, eSkilled Courses, eSkilled Resources, Customer Resources or Customer Courses.
6.8 eSkilled is not liable for the use of any Customer Resources or Customer Courses in the Cloud-based Software.
7.1 The Customer agrees that on the Anniversary Date, this Service Agreement will automatically be extended by the Term, unless the Customer provides notice to eSkilled of their intention to terminate at least thirty (30) days prior to their Anniversary Date.
7.2 Once the Anniversary Date is reached, and no notice to terminate received, this Service will be automatically extended, with the new Service Commencement Date set to the day after the Anniversary Date and the new Anniversary Date will be set by the Term.
7.3 When this Service is automatically extended under clause 7.2, the Fee shall be increased to be an amount equal to 105% of the Fee payable immediately prior to the Anniversary Date.
8.1 eSkilled may immediately suspend the Customer’s access to the Cloud-based Software, eSkilled Courses, eSkilled Resources or any parts thereof if eSkilled suspects or finds:
a. that the Customer or any of its Students is using the Cloud-based Software in a way that poses a risk to the use and enjoyment of the Cloud-based Software by any other person;
b. that providing access to the Cloud-based Software to the Customer has become unlawful;
c. that the Customer or any of its Students have breached any clause of this Agreement;
d. a resolution is passed for the winding up, dissolution, official management or administration of the Customer;
e. the Customer enters into any arrangement or composition with its creditors; or
f. the Customer is deemed to be insolvent or a receiver, receiver and manager, official manager or provisional liquidator is appointed with respect to the Customer or any of its assets.
g. the Customer has reached 7 days in arrears on Cloud-based Software fees or any other fees, without a prior arrangement agreed in writing by eSkilled.
h. the Customer breaches Clause 4 of this Agreement; or
i. a Warranty given by the Customer in Clause 5.2 of this Agreement is or becomes inaccurate.
8.2 eSkilled must give notice to the Customer of the suspension, and, if the Customer does not remedy the issue giving rise to the suspension within 7 days of receiving the notice, eSkilled may terminate the Service.
8.3 Should eSkilled terminate the Service under Clause 8.2 of this Agreement, any outstanding amounts under this Agreement will be immediately due and payable by the Customer.
8.4 The Customer may terminate the Service:
a. if eSkilled breaches Clause 3.1 of this Agreement, and the breach is not remedied within 30 days of the Customer providing notice of the breach in writing to eSkilled; or
b. on the Anniversary Date, by giving 30 days prior written notice.
8.5 The Parties acknowledge and agree that no refund or credit for unused Enrolments or any part of the Fee will be given if the Service is terminated prior to the Anniversary Date, unless this Agreement is terminated due to the breach by eSkilled or as set out within this Agreement.
8.6 Should the Customer terminate the Service other than as set out in Clause 8.4 and eSkilled is not in breach of this Agreement, the Customer must pay any outstanding Fees due for the remainder of the Term.
8.7 Upon termination:
a. the Customer must immediately cease using the Cloud-based Software.
b. the Customer must immediately cease using eSkilled Resources; and
c. the Customer must ensure that any copies of eSkilled Resources in its possession, whether Adapted or in hard copy or electronic format, are destroyed, except as required for record-keeping purposes in accordance with its obligations as an RTO.
8.8 eSkilled will provide the Customer with a copy of the Data (in database format) after termination upon written request from the Customer and payment of any outstanding Fees within 30 days from the Termination Date. The cost of extracting the database is to be paid by the Customer at the Level 2 Support Hour rates published on the Support Policy. Should the Customer not provide a written request to eSkilled for the Data within the 30 day period, eSkilled may delete the Data at their discretion.
8.9 eSkilled may terminate this Agreement at any time by giving the Customer at least thirty (30) days prior written notice. If eSkilled terminates this Agreement in this way and the Customer is not in breach of this Agreement, any charges paid by the Customer will be refunded on a pro-rata basis of the amount paid by the Customer for the time in which the Customer will not be provided with the Service.
8.10 Notwithstanding Clause 8.9, eSkilled shall use its best endeavours to provide continuing availability to the Service for the duration of this Agreement, but the Customer expressly acknowledges and accepts that eSkilled may, at its absolute discretion, immediately discontinue the Service with no notice to the Customer if eSkilled’s ability to provide the Service is restricted or altered in such a way that eSkilled considers, in its absolute discretion, that it is not commercially viable, impractical or impossible, to continue to provide the Service.
8.11 In the event of non-payment or late payment by the Customer for the services rendered under this Service Agreement, the following debt recovery provisions shall apply:
a. Payment Terms: The Customer agrees to adhere to the payment terms as specified in the agreement. The default payment period shall be 3 days from the date of invoice, unless otherwise agreed upon in writing.
b. Late Payment: If the client fails to make payment within the agreed-upon time frame, the Customer shall be responsible for an additional late payment fee, calculated at a rate of 10% per annum calculated daily on the outstanding amount.
c. Debt Recovery Fees: In the event that the Customer fails to make payment within 7 business days from the due date, the client shall be responsible for all debt recovery fees incurred by the eSkilled. These fees may include, but are not limited to, collection agency fees, attorney fees, court costs, and any other reasonable expenses directly associated with the debt recovery process.
d. Dispute Resolution: In the event of a payment dispute, both parties agree to engage in good faith negotiations to resolve the matter promptly. If a resolution cannot be reached through negotiations, the parties shall consider alternative dispute resolution methods such as mediation or arbitration, as mutually agreed upon.
e. Confidentiality: Both parties agree to treat all financial information and details related to debt recovery as strictly confidential and shall not disclose such information to any third party without prior written consent.
9.1 A Party is not liable for a breach of this Agreement, to the extent that the breach is a consequence of a Force Majeure Event.
9.2 If a Party becomes aware that it will be unable to comply with its obligations under this Agreement because of a Force Majeure Event it must immediately notify the other Party of the existence of the Force Majeure Event, the obligations with which it will be unable to comply, and the likely period of the Force Majeure Event.
9.3 When the Party is no longer prevented from complying with its obligations under this Agreement by the Force Majeure Event, then the Party must immediately notify the other Party of that fact.
10.1 Any Notice given pursuant to this Agreement must be given in writing and addressed to the recipient email address in Item 1 or 2 of Schedule 1.
10.2 A Notice will be deemed given:
a. if by email, on receiving notification of successful transmission of the email, a read receipt or a reply email confirming receipt, whichever is first.
10.3 If the notice is deemed to be received on a day which is not a Business Day or after 5pm, it is deemed to be received at 9am on the next Business Day.
11.1 The Parties acknowledge that eSkilled may amend this Agreement from time-to-time and to the extent permitted at law. The Amendment must not vary the Fee or reduce the Included Unique Students Per Year during the initial Term.
11.2 eSkilled may amend the fee or any other service terms after the Anniversary Date in accordance with clause 7.3 of this Agreement or in writing as agreed between the parties.
11.3 eSkilled will provide the amended agreement terms to the Customer at the email address specified in Item 2 of Schedule 1.
11.4 The Customer agrees to be bound by the Agreement as amended from the date notice is given in accordance with this Clause.
11.5 Any amendment to the Fee or the Included Unique Students Per Year after the Anniversary Date or outside of the operation of clause 7.3 shall be agreed to in writing.
12.1 The Parties agree that this Agreement was made and entered into in the State of Queensland, Australia.
12.2 This Agreement will be governed by and construed in accordance with the laws of the State of Queensland, Australia.
12.3 Any claim made by one party against the other in any way arising out of this Agreement will be heard in a court in Queensland and the parties submit to the jurisdiction of those Courts.
The Parties do not intend that this Agreement will give rise or be deemed to constitute a partnership, joint venture, or agency between the parties.
The terms of this Agreement constitute the entire Agreement between the parties and all understandings, prior representations, arrangements, or commitments that are not contained herein have no effect whatsoever and do not bind the parties.
The Parties agree that they have had the opportunity to obtain independent legal advice on the terms, effect and operation of this Agreement.
16.1 If any provision of this Agreement is invalid under any law then that provision will be limited, narrowed, construed or altered as necessary to render it valid, but only to the extent necessary to achieve such validity.
16.2 Any provision which cannot be construed in a way that is valid and enforceable will be severed from this Agreement and the remaining provisions will remain in full force and effect.
17.1 No Party may commence proceedings in relation to any dispute arising out of this Agreement whatsoever unless it has first complied with this Clause 16.
17.2 The aggrieved party must notify the other Party in writing of the:
a. nature of the dispute
b. outcome they are seeking; and
c. action they consider will settle the dispute.
17.3 If the dispute is not resolved within 10 Business Days, it will be referred to mediation with a mediator nominated by the President of the Queensland Law Society, unless the parties agree to appoint a particular mediator within a further 3 Business Days.
17.4 If the Dispute is unable to be resolved through formal mediation within 3 months of the date the aggrieved party notified the other of the dispute, then either party may commence court proceedings.
17.5 This Clause survives the termination of this Agreement.
18.1 No waiver of any right or remedy will be effective unless in writing and will not operate as a waiver of that right or remedy or any other right or remedy on a future occasion.
18.2 The conduct of the parties will not constitute a waiver of any right or remedy.
Any implied term under law that can be excluded is expressly excluded and no term is to be implied as being a term or condition of sale unless by law it cannot be excluded.
20.1 Each person signing this Agreement:
a. as attorney, by so doing warrants to the other parties that, as at the date of signing, the signatory has not received notice or information of the revocation of the power of attorney appointing that person; and
b. as an authorised representative, agent or trustee of a party, by so doing warrants to the other parties that, as at the date of signing, the signatory has full authority to execute this Agreement on behalf of that party.