It is agreed
1. Agreement
1.1 Acceptance
Client agrees that by making a booking for a Course displayed on the Website, Client will be bound by these Service Terms for its (or its Personnel’s) use of or participation in the Course or Additional Services.
2. Services
2.1 Scope of Courses, Additional Services
(a) In consideration for Client’s payment of the Fees, Nexacu will provide the Course (or Courses) to the Client in accordance with the terms of this agreement.
(b) If Client requests Nexacu to provide Additional Services, Nexacu and Client will agree the further Fees payable for such Additional Services, and do so before Nexacu is required to render the Additional Services.
2.2 Booking Form
(a) Each Booking Form will endeavour to specify the following:
(1) a title or description of the Course/s requested by the Client;
(2) the corresponding Fees for the requested Course/s;
(3) Client’s selected payment method;
(4) name of each of the Client’s Authorised Personnel who will attend each Course; and
(5) any special terms and conditions.
(b) The parties agree that, to any extent a provision in the Booking Form is inconsistent with a provision in these Service Terms, the provision in the Booking Form supersedes that term in these Service Terms.
2.3 Subcontractors
Client agrees that Nexacu can delegate the performance of any Course or Additional Services (or other obligations under the Agreement) to any of its subcontractors. Nexacu remains liable for the acts or omissions of any subcontractor as if they were the acts or omissions of Nexacu.
3. Courses
3.1 Course descriptions
(a) Course information displayed on our Website is provided by Nexacu or by its licensors (Third Party Suppliers). This includes Course descriptions, prerequisite or minimum experience or training, course inclusions/ exclusions, and availability dates. Nexacu is are not responsible for and relies on the accuracy of the information supplied by its Third Party Suppliers.
(b) If Nexacu becomes aware that the information provided by a Third Party Supplier is incorrect or incomplete, Nexacu reserves the right to correct the information (including, but not limited to, pricing information or course descriptions) and amend Client’s existing booking (after reasonable consultation with Client) so that it reflects the correct price or otherwise complies with the correct information. If Client proceeds with the affected Booking, additional Fees may apply. Nexacu will advise Client of such additional Fees before Client is required to decide whether to proceed with the affected booking.
3.2 Booking Policy
Client agrees to all terms of the Nexacu’s Booking Policy including that changes or cancellations to any Course booking is subject to availability.
3.3 Booking Policy Changes
Client agrees that Nexacu may change the terms of its Booking Policy at any time. The amended Booking Policy takes effect for each booking made on or after the date the amended Booking Policy is published on Nexacu’s website.
4. Online Courses; Availability and security
4.1 Security
Client acknowledges that Client alone is responsible for its (or its Personnel’s) use of the Website and protection of its password. Client is also responsible for all activities that occur in connection with Client’s account. Client agrees to notify Nexacu promptly in writing of any unauthorised use of Client’s account.
4.2 Suspension
Nexacumay suspend (in part or in whole), and without prior notice to Client, the Client’s access to the Website or provision of the Course or Additional Services if:
(a) there is a malfunction, fault or breakdown of any of Nexacu (or its contractor’s) equipment or if we (or our contractor) needs to do any repairs, maintenance or service on any part of the Website;
(b) Nexacu is required by law to do so;
(c) an event of Exceptional Circumstance occurs, which affects or may affect Nexacu’s ability to provide the Course or Additional Services;
(d) Nexacu believes (acting reasonably) that the Client (or its Personnel) are using the Course or Additional Services to infringe the Intellectual Property Rights of Nexacu or a third party;
(e) someone claims the Course or Additional Services, or Client’s use of them, infringes the Intellectual Property Rights of any person;
(f) someone brings a Claim that exposes us to liability or prosecution for an offence or liability to a statutory prosecution;
(g) such suspension is pursuant to clause 7.2 (late payment of invoice); or
(h) Nexacu determines Client is in breach of the agreement, including where Nexacu determines Client has failed to meet its obligations under clause 6.
A suspension of any of these reasons will not affect any right which accrue prior to, or after, suspension of Nexacu’s obligations under these Service Terms.
4.3 Effect of suspension
Suspension in accordance with clause 4.2 will not affect any rights which accrue prior to, or after, suspension of Client’s obligations under the Agreement.
4.4 Fraud; suspicious activity
(a) If Client makes a booking or Nexacu detect that Client’s Website account shows signs of fraud, abuse or suspicious activity, Nexacu may verify (including by pre-authorising) Client’s credit card; and/or cancel any booking associated with Client’s name, email address or account, and close any associated accounts.
(b) If Nexacu reasonably believes Client has carried out any fraudulent activity, Nexacu may take necessary legal action and Client may be liable for any Loss that Nexacu may incur, including litigation costs and damages.
(c) If Client wishes to contest the cancellation of a booking or a suspension/deactivation of Client’s account, please contact Nexacu.
4.5 Downtime and Limitations
Client agrees that:
(a) access to the Website may occasionally be limited due to scheduled maintenance;
(b) access to the Website is reliant upon various factors outside our control, including, without limitation, events of Exceptional Circumstance, your internet service provider, telecommunications provider or equipment used to access the Website;
(c) although we will use reasonable endeavours to ensure Client has continuous access to the Website, Nexacu is not be liable to Client or any other person for any Claim or to any other extent for Loss or damage caused by such factors; and
(d) Client will have no Claim against Nexacu in respect of loss of access or functionality to the Courses or Additional Services.
5. Third Party Content; Third Party Services
5.1 Third Party Content; Third Party Services
The Client acknowledges and agrees that:
(a) Nexacu can (in its sole discretion) make use of Third Party Content when providing the Courses or incorporate such Third Party Content into Course Materials;
(b) if requested by the Client, the Additional Services may include hire or lease of equipment including computers or mobile devices (Third Party Equipment);
(c) inclusion or use of Third Party Content or Third Party Equipment may be subject to licences or other terms and conditions of the applicable Third Party Supplier (Third Party Conditions); and
(d) Where the relevant Third Party Supplier provides Third Party Conditions to Nexacu, Nexacu will make reasonable efforts to advise Client of these before Client is required to confirm the Course booking. By proceeding with the booking, Client signifies its agreement to comply with the Third Party Conditions.
5.2 Compliance
(a) Client must (and must ensure its Personnel) comply with the Third Party Conditions in relation to the Third Party Content or Third Party Services.
(b) Client must not (and must ensure its Personnel do not) do or permit to do any act that breaches, or causes Nexacu to breach, Third Party Conditions or a software licence installed or used in the provision of the Course or Additional Services.
(c) Client acknowledges and agrees that any violation of any terms and conditions (including as described in this clause 5.2) may result in cancellation of its Course booking(s), in Client (or its personnel) being denied access to the applicable Course/s, in Client forfeiting any monies paid for such Course booking(s), and/or in Nexacu debiting Client’s account for any costs Nexacu incurs as a result of such violation.
5.3 Indemnity
Client agrees to indemnify, and keep indemnified, Nexacu in relation to any and all Loss it incurs or any Claim by a third party (including a Third Party Supplier) as a result of Client’s breach of this clause 5.
6. General obligations
6.1 Client’s obligations
The Client will:
(a) pay the Fees in accordance with clause 7 or any other term of this Agreement;
(b) if required, provide adequate conditions for Nexacu’s Personnel at Client’s premises and Sites, including, but not limited to, workspaces or teaching rooms, heating, ventilation, lighting, electric current and outlets and Internet access, as needed to deliver the requested Courses;
(c) promptly notify Nexacu of any event or incident that is likely to, or will impact on the provision of the Course or Additional Services, or any other obligation of Nexacu (including but not limited to Exceptional Circumstances);
(d) comply with any reasonable direction of Nexacu, in order for Nexacu to perform the Course or Additional Services and comply with its obligations under the Agreement; and
Nexacumay request Client to stop doing something which Nexacu believes (in its sole discretion) is contrary to or inconsistent with clause 6.1. Client must comply with any such request without undue delay. If Client does not, then Nexacu may take such steps it considers reasonable necessary to ensure compliance with clause 6.1 or the request.
6.2 Service limitation
Client acknowledges and agrees that Nexacu’s ability, and obligation, to provide the Course or Additional Services is subject to Client complying with its obligations under clause 6.1 and any other limitation or exclusion set out in this agreement;
6.3 Third party dealings
Client agrees to use the Course or Additional Services (as applicable) for its sole benefit and must not sell or redistribute or exploit the Courses or the Materials without Nexacu’s prior written consent (which may but not must be granted on terms which Nexacu in its sole discretion considers appropriate, and may require payment of further Fees).
6.4 Non-solicitation; Introduction fee
(a) Client will not invite or make any offer of employment to any Trainer or Consultant engaged by Nexacu, and will not accept any such approach or offer from a Trainer or Consultant, during the period of 12 months after the later of:
(1) the date Client’s last booking is made;
(2) the date Nexacu provides the last booked Course to Client (or its personnel); or
(3) the expiry or termination of this agreement.
(b) Client agrees that, if within the period in clause 6.4(a), Client engages an Nexacu trainer or consultant or receives work product from an Nexacu trainer or consultant without Nexacu’s prior written consent, Nexacu may charge and Client must pay to Nexacu an introduction fee of $20,000 and make such payment in accordance with the terms in clause 7.1.
7. Payment
7.1 Payment
Unless otherwise agreed by Nexacu in writing, Client agrees to pay the Fees and any other amount owing to Nexacu under this agreement before the earlier of:
(a) 5 days after receipt of Nexacu’s tax invoice; or
(b) the delivery date of the first Course.
7.2 Late or non-payment of invoices
If Client fails to pay an invoice within the time period referred to in clause 7.1, Nexacu may do any one or more of the following:
(a) charge interest on the amount owing at 5 percent per month;
(b) restrict or suspend the Client’s access to the Course or use of the Additional Services in accordance with clause 4.2; and/or
(c) terminate the agreement in accordance with its terms.
7.3 Fees review
Client agrees that if Client rebooks a Course and the then-current Fees for such Course have increased since the date the original booking was made, Nexacu may (but not must) charge the increased Fee and Client will pay the difference to Nexacu as further Fees, in accordance with clause 7.1.
8. Goods and Services Tax
8.1 GST exclusive
Unless expressly stated to the contrary, all amounts expressed in the Agreement are exclusive of GST.
8.2 Recipient to pay Supplier
(a) If a party (the Supplier) is obliged under the GST Law to pay an amount of GST for a taxable supply made by the Supplier to another party (the Recipient) under the Agreement, the Recipient must pay the Supplier an amount equal to the GST payable on the supply by the Supplier.
(b) The Recipient must pay the amount referred to in clause 8.2(a) and any interests, penalties, fines or expenses relating to the GST, in addition to and at the same time as the consideration otherwise payable by the Recipient for the supply.
8.3 Tax Invoice
If requested by the Recipient, the Supplier must provide the Recipient with a Tax Invoice on or before payment of the amounts required by clause 8.2.
9. Intellectual Property Rights
9.1 Nexacu Technology
(a) No rights of ownership to Nexacu Technology or Third Party Content are transferred under the Agreement.
(b) Nexacu grants Client a non-exclusive, non-transferable, revocable and royalty-free licence (subject to clause 7.1) to use the Nexacu Technology as embodied in the Course and Course Material, but only to the extent necessary for Client to enjoy benefits of the Course, Course Material or Additional Services in the manner contemplated by this agreement.
(c) The licence granted under clause 9.1(b) excludes a right of copying (other than making a backup copy) or sub-licence.
9.2 Provision and ownership of New IP
Upon its creation all New IP:
(a) will be owned by, vest in, and (to the extent required) be assigned to, Nexacu; and
(b) subject to payment under clause 7.1, Client will be granted a non-exclusive, revocable, non-transferable licence to use the New IP on the terms of clause 9.1.
9.3 Prohibited activities
Client must not (and must ensure its Personnel do not) do or permit or omit to do any act which infringes the Intellectual Property Rights of Nexacu or its Third Party Suppliers.
9.4 Notification of infringement claim
The Client must notify Nexacu within 2 Business Days if it becomes aware of:
(a) any actual or suspected infringement by a third party of a party’s Intellectual Property Rights; or
(b) any actual or threatened Claim by a third party that its Intellectual Property Rights have or will be infringed by any act or omission by a party in connection with the Agreement.
10. Confidential Information
10.1 Disclosure
(a) A party must not, without the prior written approval of the other party, disclose the other party’s Confidential Information.
(b) Each party must take all reasonable steps to ensure that its employees and agents, any sub-contractors, or persons otherwise engaged for the purposes of the Agreement, do not make public or disclose the other party’s Confidential Information.
(c) A party is not in breach of this clause 10.1 in circumstance where it is legally compelled to disclose the other party’s Confidential Information.
(d) Notwithstanding any other provision of this clause 10.1, the parties may disclose the terms of the Agreement (other than Confidential Information of a technical nature) to its related companies, solicitors, auditors, insurers and accountants.
10.2 Return of Confidential Information
Each party must on demand, return to the other party any Confidential Information supplied by the other party in connection with the Agreement.
10.3 Security and unauthorised access
(a) Each party must ensure that all information and Materials of the other party (or its agents or contractors) in the custody of that party for purposes connected with the Agreement are protected at all times from unauthorised access or use by a third party, and from misuse, damage or destruction by any person.
(b) Client must ensure compliance with all security regulations, procedures or directions as may be given by Nexacu from time to time relating to the Confidential Information or access to Nexacu’s Confidential Information.
10.4 Survival and indemnity
(a) This clause survives the termination of the Agreement.
(b) Client agrees to indemnify, and keep indemnified, Nexacu in relation to any and all Loss it incurs as a result of Client’s breach of this clause 10.
11. Privacy Law
11.1 Client’s consent to transfer of personal information
(a) Unless agreed otherwise in writing under clause 11.3, the Client consents, acknowledges and agrees that:
(1) any Personal Information disclosed to Nexacu may be disclosed to, and or stored, on infrastructure used by Nexacu outside Australia, or as is otherwise provided in the Order Document; and
(2) by entering into the agreement, Client expressly agrees and consents to, and will procure the consent of its Personnel to, the disclosure or use of any Personal Information outside of Australia in the manner permitted by this clause.
(b) In providing this consent Client understands and acknowledges that countries outside Australia do not always have the same privacy protection obligations as Australia in relation to Personal Information.
11.2 Privacy protection obligations
By providing the Client’s consent, under Privacy Law, Australian Privacy Principle 8.1 in Privacy Law (to the extent applicable) does not apply to disclosures referred to in clause 11.1(a).
11.3 Information stored in Australia only
(a) The parties agreed that this clause 11.3 is only applicable if such written agreement of the parties is reached pursuant to clause 11.1.
(b) Notwithstanding the preceding in this clause 10, the parties may agree separately in writing that the Client’s information and the Client Data in relation to the Course or Additional Services are stored in Australia.
(c) Nexacu may elect to charge the Client, in its sole discretion, any reasonable additional fees associated with carrying out storage as agreed under clause 11.3(a).
12. Warranties
12.1 Nexacu warranties
(a) Nexacu warrants to Client:
(1) that is has the full right and title to enter into the Agreement and to grant the rights it sets out to Client; and
(2) that the provision of the Course and Additional Services (if any) will be performed with due care and diligence.
(b) Nexacu makes no warranty in relation to the compatibility of any Course or Additional Service it provides with the Client’s infrastructure, IT systems or websites.
12.2 Client warranties
Client warrants to Nexacu:
(a) that it has full right and title to enter into the agreement and to grant the rights it sets out to Nexacu;
(b) that no information has been withheld from Nexacu that may affect Nexacu’s decision to enter into this agreement; and
(c) that it has satisfied itself of the content of this agreement and, if necessary, obtained independent advice from a relevant expert to confirm same before entering into it.
13. Liability
13.1 Consumer guarantees
EC’s Course or Additional Services may come with guarantees that cannot be excluded under the Australian Consumer Law. For major failures with the Course or an Additional Service, the Client is entitled:
(a) to cancel the Agreement;
(b) to a refund for the unused portion of, or compensation for its reduced value; and
(c) to be compensated for any other reasonably foreseeable loss or damage.
If the failure in does not amount to a major failure, the user is entitled to have problems with the service rectified in a reasonable time and, if this is not done, to cancel the agreement and obtain a refund for the unused portion of the agreement.
13.2 Exclusion of liability
(a) To the extent permitted by Law, in no event will Nexacu be Liable to Client for Consequential Loss, even if Nexacu has been made aware of the possibility of such Consequential Loss prior to entering into the Agreement.
(b) The Client acknowledges and agrees that to the extent a Deliverable includes software, that software is never error or defect free, and that the mere presence of defects or errors in software will not constitute a breach of Nexacu’s obligations under the agreement.
(c) The Client acknowledges and agrees that the effectiveness of any application, methodology or process used by Nexacu in delivering the Course or Additional Services may be dependent on external factors controlled by the Client or Third Parties, and any errors, incompatibilities or adverse effects that occur as a result of Client’s or a Third Party’s actions:
(1) after the Commencement Date; or
(2) on or before the Commencement Date, that could not be ascertained or foreseen by Nexacu (to be determined by Nexacu, acting reasonably),
including but not limited to:
(3) substantial changes in attendance numbers for a Course/s;
(4) changes to the Client’s digital operating environment;
(5) changes in algorithms, processes, upgrades, updates, new releases and patches; or
(6) any other changes to variables relied on by Nexacu to deliver the Course or Additional Services,
do not constitute a breach of Nexacu’s obligations under the Agreement.
(d) Unless otherwise specified, neither party is liable to Third Parties regarding, or arising out of or in connection with, the Agreement.
13.3 Implied terms
To the full extent permitted by Law, and term which would otherwise be implied into the Agreement is excluded. If any Law implies or imposes terms into the Agreement which cannot be lawfully excluded, such terms will apply, save that the liability Nexacu for breach of any such term will be limited in accordance with clause 13.4(a).
13.4 Limitation of liability
(a) Re-performance
To the extent Nexacu is found Liable in connection with the Agreement, its Liability shall be limited (at the option of Nexacu) to any one or more of the following:
(b) re-supplying the Course or Additional Services to which the Liability relates or the supply of equivalent services; or
(c) reimbursing Client (subject to clause 13.5) for paying someone else to supply the Additional Services which the Liability relates.
13.5 Liability cap
If Nexacu is Liable in connection with the Agreement (whether in contract, tort, indemnity or statute), then irrespective of anything else in the Agreement, Nexacu’s cumulative Liability in the aggregate (to the fullest extent permitted by Law) shall in no event exceed the lesser of:
(a) an amount equal to the sum of the Fees paid by Client to Nexacu in relation to the applicable Course or Additional Services before the Liability arose; or
(b) to the extent the Loss or Liability is indemnified by Nexacu’s insurer, the amount recovered by Nexacu under the respective insurance policy.
Nothing in this clause 13.5 excludes or limits the Client’s obligation to pay the Fees and all other amounts payable under the Agreement.
14. Indemnity
Client indemnifies, and will keep indemnified, Nexacu against any:
(a) Claims against Nexacu; or
(b) Loss suffered by Nexacu,
arising from:
(c) any fraud or willful misconduct of the Client or its Personnel under or in connection with the Agreement;
(d) the negligent acts or omissions of Client or its Personnel under or in connection with the Agreement; or
(e) the Client’s alleged infringement of a third party’s Intellectual Property Rights.
15. Termination
15.1 Termination for cause
(a) Either party may terminate the agreement immediately by written notice upon the occurrence of one of the following events:
(1) if the other party is in breach of this agreement and that other party has failed to remedy that breach within ten (10) business days of a written notice to it from the first-mentioned party, specifying the breach and requiring it to be remedied;
(2) an Insolvency Event occurs in respect of the other party.
15.2 No prejudice of rights
Termination shall not prejudice or affect any right or action which shall have accrued or shall thereafter accrue to either party.
15.3 Consequences of Termination
Upon termination of the agreement:
(a) Nexacu will stop performing the Course or Additional Services;
(b) all money due by Client to Nexacu under this agreement must be paid in full;
(c) each party must return to the other party of (if requested by the other party) destroy, all Confidential Information belonging to the other party;
(d) Client must grant Nexacu and/or its authorised representatives or agents, the right of reasonable access to any of its records, sites and Materials that are related to the agreement or any Order Document.
15.4 Survival
The following clauses survive termination of the Agreement: clauses 5.2-5.3 (Third Party Software; Third Party Services), clause 8 (Goods and Services Tax); clause 9 (Intellectual Property Rights); clause 10 (Confidential Information); clause 11 (Privacy Law), clause 13 (Liability); clause 14 (Indemnity), clause 15.3 (Consequences of Termination); and this clause 15.4.
16. Force Majeure
16.1 Suspension of obligations
If a party (Affected Party):
(a) is prevented from, or delayed in, performance of an obligation (other than an obligation of Client to pay money) by an event of Exceptional Circumstance; and
(b) the Affected Party, as soon as possible after the event of Exceptional Circumstance notifies the other party providing particulars of:
(1) the event of Exceptional Circumstance;
(2) the anticipated period of delay; and
(3) the action (if any action is reasonably possible) the Affected Party intends to take to mitigate the effect of the delay,
then those obligations of the Affected Party are suspended for the duration of the event of Exceptional Circumstance.
16.2 Obligations on other party
The party which is not the Affected Party must use all reasonable endeavours to remove or mitigate its Loss arising from, and the effects of, the event of Exceptional Circumstance.
17. Miscellaneous
17.1 Notices
(a) The parties may give each other notice under this Agreement by email or by post, at:
(1) for the Nexacu—Level 8, 201 Charlotte Street, Brisbane City Queensland 4000 or by email [email protected];
(2) for the Client—the Client’s business address or email address as set out in the Booking Form.
(b) A party may from time to time change its address or numbers for service by notice to each other party.
17.2 Governing law and jurisdiction
These terms will be governed by and construed in accordance with the laws of Queensland, Australia and the parties submit to the non-exclusive jurisdiction of the Courts of Queensland.
17.3 Exercise rights
A single or partial exercise or waiver by a party of any right under or relating to this agreement will not prevent any other exercise of that right or the exercise of any other right.
17.4 Assignment
(a) Assignment by Nexacu
Nexacumay assign its obligations in this Agreement by providing the Client with 30 days’ prior written notice of such assignment.
(b) Assignment by Client
The Client must not assign, transfer or novate all or any part of its rights or obligations under or relating to this Agreement or grant, declare, create or dispose of any right or interest in it, without the prior written consent of Nexacu (which Nexacu may in its sole discretion grant, refuse, or grant on conditions it determines reasonable in the circumstances).
17.5 Merger
If the liability of a party to pay money under this agreement becomes merged in any deed, judgment, order or other thing, the party liable must pay interest on the amount owing from time to time under that deed, judgment, order or other thing at the higher of the rate payable under this agreement and that fixed by or payable under that deed, judgment, order or other thing.
17.6 Remedies cumulative
The rights and remedies under this agreement are cumulative and not exclusive of any rights or remedies provided by law.
17.7 Severability
If a provision of this agreement is illegal, invalid, unenforceable or void in a jurisdiction it is severed for that jurisdiction and the remainder of this agreement has full force and effect and the validity or enforceability of that provision in any other jurisdiction is not affected.
17.8 Further assurance
Each party must promptly at its own cost do all things (including executing and delivering all documents) necessary or desirable to give full effect to this agreement and the transactions contemplated by it.
17.9 Costs
Each party is responsible for all its own costs incurred in the negotiation and performance of this agreement including legal costs.
17.10 Waiver
(a) A party’s waiver of a right under or relating to this agreement, whether prospectively or retrospectively, is not effective unless it is in writing and signed by that party.
(b) No other act, omission or delay by a party will constitute a waiver of a right.
17.11 Counterparts
This agreement may be executed in any number of counterparts each of which will be considered an original but all of which will constitute one and the same instrument. A party who has executed a counterpart of this agreement may deliver it to, or exchange it with, another party by emailing a pdf (portable document format) copy of the executed counterpart to that other party.
17.12 Whole agreement
This agreement:
(a) is the entire agreement and understanding between the parties relating to the subject matter of this agreement; and
(b) supersedes any prior agreement, representation (written or oral) or understanding on anything connected with that subject matter.
18. Definitions and interpretation
18.1 Definitions
In this agreement:
Additional Services includes room or equipment hire or other services and incurred on a per-diem or time and materials basis.
Booking Form means a form, whether in electronic, online or printed, which allows the Client to register one or more student participants into one or more Courses.
Booking Policy means Nexacu’s policy on making bookings, changes or cancellations, as published on the Website as at the date this agreement is made.
Business Day means:
(a) if determining when a notice, consent or other communication is given, a day that is not a Saturday, Sunday or public holiday in the place to which the notice, consent or other communication is sent; and
(b) for any other purpose, a day (other than a Saturday, Sunday or public holiday) on which banks are open for general banking business in Brisbane.
Claim means, in relation to a person, any action, allegation, claim, demand, judgment, liability, proceeding, remedy, right of action or right of set-off made against the person concerned however it arises whether:
(a) it is present, unascertained, immediate, future or contingent;
(b) it is based in contract, tort, statute or otherwise; or
(c) it involves a third party or a party to this agreement.
Client means the entity named as the Client in the Booking Form. If the entity is a body corporate, Client includes any of the entity’s personnel named as the student in the Booking Form or a subsequent request to participate in a Course.
Course Material means any Material for a Course, including a student workbook or study guide.
Course (or Courses) means a training event on a specified topic, whether public or private, and whether delivered in-person or online, live or pre-recorded.
Confidential Information means, in relation to each party (for the purposes of this definition, Discloser), all information disclosed by or on behalf of the Discloser, concerning or relating to:
(a) the fee and remuneration structure set out in this agreement;
(b) know-how, trade secrets, ideas, marketing strategies, operational information, technical information and financial information;
(c) proprietary software tools, business processes, project management methodologies and tools, software testing and verification methods, solution architecture models and solutions;
(d) its business affairs (including products, services, customers and suppliers); and
(e) other information, which, by its nature or by the circumstances of its disclosure, is or could reasonably be expected to be regarded as confidential,
but excluding any such information:
(f) which is publicly known;
(g) which is disclosed to the other party without restriction by a third party (other than the Discloser) and without any breach of confidentiality by that third party; or
(h) which is developed independently by other party without reliance on any of the confidential information.
Consequential Loss means any of the following: loss of revenue; loss of profits; loss of opportunity to make profits; loss of business; loss of business opportunity; loss of use or amenity, or loss of anticipated savings; loss of data; special, exemplary or punitive damages; and any loss which does not directly and naturally flow in the normal course of events from the occurrence of the event giving rise to the liability for such loss, whether or not such loss was in the contemplation of the parties at the time of entry into this Agreement, including any of the above types of loss arising from an interruption to a business or activity.
Corporations Act means the Corporations Act 2001 (Cth).
Nexacu means Excel Consulting Solutions Pty Ltd ABN 88 600 429 212.
Nexacu Technology means all Intellectual Property Rights created, owned or licensed by Nexacu (or its licensor) independently of this Agreement, including training and testing manuals, resources and concepts, business models, software architecture, solution models, interfaces, graphic design content, code libraries, and design ideas and concepts.
Exceptional Circumstance means a circumstance beyond the reasonable control of the parties which results in a party being unable to observe or perform on time an obligation under this agreement. Such circumstances include:
(a) adverse changes in government regulations;
(b) any disaster or act of God, lightning strikes, atmospheric disturbances, earthquakes, floods, storms, explosions, fires and any natural disaster;
(c) acts of war, acts of public enemies, terrorism, riots, civil commotion, malicious damage, sabotage and revolution, cyber attacks, viruses or malware, data loss as a result of the actions of a third party;
(d) strikes or industrial disputes;
(e) materials or labour shortage; and
(f) acts or omissions of any third party network providers (such as internet, telephony or power provider).
Fees means the fees payable by Client for the Course or Additional Services as set out in the Order Document, and for any Additional Services contemplated in clause 2.1(b).
GST has the meaning given in the GST Law.
GST Law means the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Insolvency Event means an event of bankruptcy or insolvency, an assignment for the benefit of creditors, the appointment of a receiver, receiver and manager, provisional liquidator, liquidator and official manager or any similar person to any assets of a person, a failure to comply with a statutory demand, or anything else which occurs which is analogous or has a substantially similar effect, under the laws of any jurisdiction, or the person is otherwise insolvent or unable to pay its debts as and when they fall due.
Intellectual Property Rights means all current and future registered and unregistered rights in respect of copyright, circuit layouts, designs, trade marks, know-how, confidential information, patents, inventions, plant breeder’s rights and discoveries and all other intellectual property as defined in article 2 of the convention establishing the World Intellectual Property Organisation 1967.
Law means any statute, rule, regulation, proclamation, order in council, ordinance, local law or by-law, whether:
(a) present or future; or
(b) State, federal or otherwise.
Liability means any liability, debt or obligation, whether actual, contingent or prospective, present or future, qualified or unqualified or incurred jointly or severally with any other person.
Loss means any loss (including Consequential Loss), claims, actions, liabilities, damages, expenses, diminution in value or deficiency of any kind whether direct, indirect, consequential or otherwise.
Material means property, information, software, firmware, documented methodology or process, documentation or other material in whatever form, including any reports, specifications, business rules or requirements, user manuals, user guides, operations manuals, training materials and instructions, and the subject matter of any category of Intellectual Property Rights.
New IP means any and all Intellectual Property Rights created in the course of, or connection with, the provision of the Course or performance of the Additional
Services.
Personal Information has the meaning given in the Privacy Law.
Personnel means in relation to a party, any Related Body Corporate, Related Entity, employee, officer, agent, contractor, professional adviser of that party.
Privacy Law means the Privacy Act 1988 (Cth).
Reference Schedule means the schedule at the beginning of this agreement.
Related Body Corporate includes any corporation that is deemed to be related to a person by virtue of the provisions of the Corporations Act.
Related Entity means a person which is a related entity within the meaning of that term in section 9 of the Corporations Act.
Services means the professional training and development services, including public Courses, workplace training, online courses and webinars to be provided by Nexacu from time to time during the Term of the agreement.
Site(s) means those site(s) at which on-site support Services will be provided (if applicable), as further set out in the Booking Form.
Special Conditions means the special conditions (if any) set out in the Booking Form.
Tax Invoice means a “tax invoice” compliant with the requirements of the GST Law.
Term means the duration of the agreement, until it is terminated or expires in accordance with the terms of the agreement.
Third Party Content means any Software, Intellectual Property Rights or Material which is owned by a Third Party and includes (but is not limited to) open source Software.
The terms Third Party Equipment, Third Party Services, and Third Party Supplier have the meanings given to those terms in clause 5.1.
Website means Nexacu’s website hosted at nexacu.com.au or any other domain notified by Nexacu to Client.
Where a term used in this agreement appears in bold type in the Reference Schedule, that term has the meaning shown opposite it in the Reference Schedule.
18.2 Interpretation
(a) Unless the contrary intention appears, a reference in this agreement to:
(1) this agreement or another document includes any variation or replacement of it despite any change in the identity of the parties;
(2) one gender includes the others;
(3) the singular includes the plural and the plural includes the singular;
(4) a person, partnership, corporation, trust, association, joint venture, unincorporated body, or other entity includes any other of them;
(5) an item, recital, clause, subclause, paragraph, schedule or attachment is to an item, recital, clause, subclause, paragraph of, or schedule or attachment to, this agreement and a reference to this agreement includes any schedule or attachment;
(6) a party includes the party’s executors, administrators, successors, substitutes (including a person who becomes a party by novation) and permitted assigns;
(7) any statute, ordinance, code or other law includes regulations and other instruments under any of them and consolidations, amendments, re-enactments or replacements of any of them;
(8) money is to Australian dollars, unless otherwise stated; and
(9) a time is a reference to Brisbane time unless otherwise specified.
(b) The words include, including, such as, for example and similar expressions are not to be construed as words of limitation.
(c) Where a word or expression is given a particular meaning, other parts of speech and grammatical forms of that word or expression have a corresponding meaning.
(d) Headings and any table of contents or index are for convenience only and do not affect the interpretation of this agreement.
(e) A provision of this agreement must not be construed to the disadvantage of a party merely because that party or its advisers were responsible for the preparation of this agreement or the inclusion of the provision in this agreement.
18.3 Business Days
(a) If anything under this agreement must be done on a day that is not a Business Day, it must be done instead on the next Business Day.
(b) If an act is required to be done on a particular day, it must be done before 5.00pm on that day or it will be considered to have been done on the following day.
18.4 Parties
(a) If a party consists of more than one person, this agreement binds each of them separately and any two or more of them jointly.
(b) An agreement, covenant, obligation, representation or warranty in favour of two or more persons is for the benefit of them jointly and each of them separately.
(c) An agreement, covenant, obligation, representation or warranty on the part of two or more persons binds them jointly and each of them separately.
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