It is agreed
1. Agreement
1.1 Acceptance
The Client agrees that by making a booking for a Course displayed on the Website, the 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 and Additional Services
(a) In consideration for the Client’s payment of the Fees, Nexacu will provide the Course(s) to the Client in accordance with this agreement.
(b) If the Client requests Nexacu to provide Additional Services, Nexacu and the Client will agree the further Fees payable for such Additional Services before Nexacu is required to provide them.
2.2 Booking Form
(a) Each Booking Form will endeavour to specify the following:
(1) the title or description of the Course(s) requested by the Client;
(2) the corresponding Fees for the requested Course(s);
(3) the Client’s selected payment method;
(4) the name of each of the Client’s Authorised Personnel who will attend each Course; and
(5) any special terms and conditions.
(b) To the extent of any inconsistency between a Booking Form and these Service Terms, the Booking Form prevails for that booking.
2.3 Subcontractors
The Client agrees that Nexacu may delegate the performance of any Course or Additional Services (or other obligations under this agreement) to subcontractors. Nexacu remains liable for the acts or omissions of any subcontractor as if they were Nexacu’s own.
3. Courses
3.1 Course descriptions
(a) Course information displayed on the Website is provided by Nexacu or by its licensors (Third Party Suppliers). This includes Course descriptions, prerequisites or minimum experience or training, course inclusions/exclusions, and availability dates. Nexacu relies on the accuracy of the information supplied by its Third Party Suppliers.
(b) If Nexacu becomes aware that information provided by a Third Party Supplier is incorrect or incomplete, Nexacu may correct the information (including, but not limited to, pricing or course descriptions) and, after reasonable consultation with the Client, amend the Client’s existing booking so that it reflects the correct information. If the Client proceeds with the affected booking, additional Fees may apply. Nexacu will advise the Client of such additional Fees before the Client is required to decide whether to proceed with the affected booking.
3.2 Booking Policy
The Client agrees to all terms of Nexacu’s Booking Policy, including current rules for rescheduling, cancellations, training credit validity and list statuses (Pending/Restricted). Changes or cancellations are subject to availability.
3.3 Booking Policy changes
The 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 policy is published on Nexacu’s Website.
4. Online Courses; Availability and security
4.1 Security
The Client acknowledges that it is responsible for its (and its Personnel’s) use of the Website and protection of its password(s). The Client is also responsible for all activities that occur in connection with its account. The Client agrees to notify Nexacu promptly in writing of any unauthorised use of its account.
4.2 Suspension
Nexacu may suspend (in part or in whole), without prior notice to the Client, the Client’s access to the Website or the provision of the Course or Additional Services if:
(a) there is a malfunction, fault or breakdown of any of Nexacu’s (or its contractor’s) equipment or if Nexacu (or its contractor) needs to perform repairs, maintenance or service;
(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 reasonably believes that the Client (or its Personnel) is 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 the Client’s use of them, infringes the Intellectual Property Rights of any person;
(f) someone brings a Claim that exposes Nexacu to liability or prosecution for an offence;
(g) such suspension is pursuant to clause 7.2 (late payment of invoice); or
(h) Nexacu determines the Client is in breach of this agreement, including failure to meet obligations under clause 6.
A suspension for any of these reasons will not affect any rights which accrue prior to, or after, suspension of Nexacu’s obligations under these Service Terms.
4.3 Effect of suspension
During any suspension under clause 4.2, the Client remains responsible for all obligations not expressly suspended.
4.4 Fraud; suspicious activity
(a) If the Client makes a booking or Nexacu detects that the Client’s Website account shows signs of fraud, abuse or suspicious activity, Nexacu may verify (including by pre-authorising) the Client’s credit card, cancel any booking associated with the Client’s name, email address or account, and close any associated accounts.
(b) If Nexacu reasonably believes the Client has carried out any fraudulent activity, Nexacu may take necessary legal action and the Client may be liable for any Loss that Nexacu incurs, including litigation costs and damages.
(c) If the Client wishes to contest the cancellation of a booking or a suspension/deactivation of its account, it must contact Nexacu.
4.5 Downtime and limitations
The Client agrees that:
(a) access to the Website may occasionally be limited due to scheduled maintenance;
(b) access to the Website is reliant upon factors outside Nexacu’s control, including events of Exceptional Circumstance, the Client’s internet service provider, telecommunications provider or equipment;
(c) although Nexacu will use reasonable endeavours to ensure continuous access, Nexacu is not liable for any Claim, Loss or damage caused by such factors; and
(d) the 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 may (in its sole discretion) make use of Third Party Content when providing the Courses and may 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 the Client of these before the Client is required to confirm the Course booking. By proceeding with the booking, the Client signifies its agreement to comply with the Third Party Conditions.
5.2 Compliance
(a) The 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) The Client must not (and must ensure its Personnel do not) do or permit 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) The 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), the Client (or its Personnel) being denied access to the applicable Course(s), the Client forfeiting any monies paid for such Course booking(s), and/or Nexacu debiting the Client’s account for any costs Nexacu incurs as a result of such violation.
5.3 Indemnity
The 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 the 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 the 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 this agreement;
Nexacu may request the Client to stop doing something which Nexacu believes (in its sole discretion) is contrary to or inconsistent with clause 6.1. The Client must comply with any such request without undue delay. If the Client does not, then Nexacu may take such steps as it considers reasonably necessary to ensure compliance with clause 6.1 or the request.
6.2 Service limitation
The Client acknowledges and agrees that Nexacu’s ability, and obligation, to provide the Course or Additional Services is subject to the 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
The Client agrees to use the Course or Additional Services (as applicable) for its sole benefit and must not sell, redistribute or exploit the Courses or the Materials without Nexacu’s prior written consent (which may, but need not, 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) The 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 the Client’s last booking is made;
(2) the date Nexacu provides the last booked Course to the Client (or its Personnel); or
(3) the expiry or termination of this agreement.
(b) The Client agrees that, if within the period in clause 6.4(a), the Client engages a Nexacu trainer or consultant or receives work product from a Nexacu trainer or consultant without Nexacu’s prior written consent, Nexacu may charge and the Client must pay to Nexacu an introduction fee of $20,000 and make such payment in accordance with clause 7.1.
7. Payment
7.1 Payment
Unless otherwise agreed by Nexacu in writing, the 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 the Client fails to pay an invoice within the period referred to in clause 7.1, Nexacu may do one or more of the following:
(a) charge interest on the amount owing at 5% 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
The Client agrees that if it rebooks a Course and the then-current Fees have increased since the date of the original booking, Nexacu may (but is not obliged to) charge the increased Fee, and the Client will pay the difference as further Fees in accordance with clause 7.1. Training credit validity and any rescheduling timeframes are governed by the Booking Policy.
8. Goods and Services Tax
8.1 GST exclusive
Unless expressly stated to the contrary, all amounts in this 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 this 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 interest, 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 this agreement.
(b) Subject to clause 7.1, Nexacu grants the Client a non-exclusive, non-transferable, revocable and royalty-free licence to use the Nexacu Technology as embodied in the Courses and Course Materials, but only to the extent necessary for the Client to enjoy the benefits of the Courses, Course Materials 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 back-up copy) or sub-licensing.
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, the Client will be granted a non-exclusive, revocable, non-transferable licence to use the New IP on the terms of clause 9.1(b).
9.3 Prohibited activities
The 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 this 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 subcontractors, or persons otherwise engaged for the purposes of this 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 circumstances 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 this agreement (other than Confidential Information of a technical nature) to their related companies, solicitors, auditors, insurers and accountants.
10.2 Return of Confidential Information
Each party must, on demand, return to the other party or (if requested by the other party) destroy, all Confidential Information belonging to the other party that is in its possession or control.
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 this 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) The Client must ensure compliance with all security regulations, procedures or directions as may be given by Nexacu from time to time relating to Confidential Information or access to Nexacu’s Confidential Information.
10.4 Survival and indemnity
(a) This clause survives the termination of this agreement.
(b) The Client agrees to indemnify, and keep indemnified, Nexacu in relation to any and all Loss it incurs as a result of the 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 this agreement, the 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 the 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 the 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) This clause 11.3 only applies if such written agreement of the parties is reached pursuant to clause 11.1.
(b) Notwithstanding clause 11.1, the parties may separately agree in writing that the Client’s information and the Client Data in relation to the Courses 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 the Client:
(1) that it has the full right and title to enter into this agreement and to grant the rights it sets out to the Client; and
(2) that the provision of the Courses 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
The Client warrants to Nexacu:
(a) that it has the full right and title to enter into this 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 as to the content of this agreement and, if necessary, obtained independent advice from a relevant expert before entering into it.
13. Liability
13.1 Consumer guarantees
Nexacu’s Courses 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 does not amount to a major failure, the Client is entitled to have the issue rectified in a reasonable time. If this is not done, the Client may 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 the 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 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:
(1) actions after the Commencement Date; or
(2) actions on or before the Commencement Date, that could not reasonably have been foreseen by Nexacu,
including but not limited to:
(3) substantial changes in attendance numbers for a Course;
(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, this agreement.
13.3 Implied terms
To the full extent permitted by Law, any term which would otherwise be implied into this agreement is excluded. If any Law implies or imposes terms into this agreement which cannot be lawfully excluded, such terms will apply, save that Nexacu’s liability 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 this agreement, its liability shall be limited (at Nexacu’s option) to 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 the Client (subject to clause 13.5) for paying someone else to supply the Additional Services to which the liability relates.
13.5 Liability cap
If Nexacu is liable in connection with this agreement (whether in contract, tort, indemnity or statute), then irrespective of anything else in this agreement, Nexacu’s cumulative liability in the aggregate (to the fullest extent permitted by Law) shall not exceed the lesser of:
(a) an amount equal to the sum of the Fees paid by the 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 this agreement.
14. Indemnity
The 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 wilful misconduct of the Client or its Personnel under or in connection with this agreement;
(d) the negligent acts or omissions of the Client or its Personnel under or in connection with this 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 this 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 this agreement:
(a) Nexacu will stop performing the Courses or Additional Services;
(b) all money due by the Client to Nexacu under this agreement must be paid in full;
(c) each party must return to the other party or (if requested by the other party) destroy, all Confidential Information belonging to the other party;
(d) the 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 this agreement or any Order Document.
15.4 Survival
The following clauses survive termination of this 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 the 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) 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 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 - Nexacu may assign its obligations under 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 Nexacu’s prior written consent (which Nexacu may in its sole discretion grant, refuse, or grant on conditions it determines reasonable).
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. 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 may deliver it to, or exchange it with, another party by emailing a PDF copy of the executed counterpart.
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 and updated on the Website from time to time.
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.
Client means the entity named as the Client in the Booking Form.
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 (Discloser), all information disclosed by or on behalf of the Discloser, concerning or relating to its business affairs (including products, services, customers and suppliers).
Consequential Loss means any of the following: loss of revenue, loss of profits, loss of opportunity, loss of business, loss of business opportunity, loss of use or amenity, loss of anticipated savings, loss of data, special or punitive damages, and any loss which does not directly and naturally flow in the normal course of events.
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 independently of this agreement.
Exceptional Circumstance means a circumstance beyond the reasonable control of the parties including disasters, strikes, terrorism, cyber-attacks, or power outages.
Fees means the fees payable by the Client for the Course or Additional Services.
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 or anything analogous under the laws of any jurisdiction.
Intellectual Property Rights means all rights in respect of copyright, designs, trade marks, patents, inventions and confidential information.
Law means any statute, rule, regulation, proclamation or by-law, present or future, State, federal or otherwise.
Liability means any liability, debt or obligation, whether actual or contingent.
Loss means any loss (including Consequential Loss), claims, actions, liabilities, damages, expenses, diminution in value or deficiency of any kind.
Material means property, information, software, documentation or other material in whatever form, including training materials.
New IP means any and all Intellectual Property Rights created in the course of, or in 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 employee, officer, agent, contractor or adviser of that party.
Privacy Law means the Privacy Act 1988 (Cth).
Related Body Corporate has the meaning given in the Corporations Act.
Related Entity has the meaning given in section 9 of the Corporations Act.
Services means the professional training and development services, including public Courses, workplace training, online courses and webinars provided by Nexacu.
Site(s) means those site(s) at which on-site support Services will be provided (if applicable).
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 this agreement, until it is terminated or expires in accordance with the terms of this agreement.
Third Party Content means any Software, Intellectual Property Rights or Material owned by a third party.
Website means Nexacu’s website hosted at nexacu.com.au.
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;
(2) one gender includes the others;
(3) the singular includes the plural and the plural includes the singular;
(4) a person includes any entity or body;
(5) an item, recital, clause, paragraph or schedule is a reference to this agreement;
(6) a party includes its executors, administrators, successors and permitted assigns;
(7) any statute includes amendments or re-enactments;
(8) money is to Australian dollars; and
(9) a time is a reference to Brisbane time.
(b) The words include, including, such as and similar expressions are not words of limitation.
(c) Headings are for convenience only and do not affect interpretation.
(d) A provision must not be construed to the disadvantage of a party merely because that party was responsible for drafting it.
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 on the next Business Day.
(b) If an act is required to be done on a particular day, it must be done before 5.00 pm on that day or it will be considered to have been done on the following Business 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 benefits them jointly and separately.
(c) An agreement, covenant, obligation, representation or warranty on the part of two or more persons binds them jointly and separately.
