Protecht Academy – Customer LMS – Terms & Conditions
1. Agreement
1.1 These Terms and Conditions, together with the Commercial Details, form this Agreement. This Agreement sets out the terms on which Protecht will licence the Courses to the Customer.
2. Term
2.1 This Agreement will commence on the Effective Date and continue for an initial 1 year term (the Initial Period) and therafter automatically extend for successive periods of 12 months (each extension of 12 months being an Extension Period), unless (a) either party terminates this Agreement effective at the end of the Initial Period or any subsequent Extension Period by not less than 90 days written notice to the other party, (b) this Agreement terminates earlier under clause 7, or (c) the parties otherwise agree in writing (the Term).
2.2 The Initial Period and each Extension Period will constitute a separate Subscription Period.
3. Licence
3.1 Protecht grants to the Customer a non-exclusive, non-transferrable right to:
(a) install the Courses on the Customer’s LMS; and
(b) authorise Permitted Users to access and use the Courses through the Customer’s LMS solely for the Customer’s internal business operations,
during the Term and otherwise in accordance with the terms and conditions of this Agreement.
3.2 The Customer may not commercially exploit or sub-licence any rights granted under clause 3.1.
3.3 Save to the extent expressly permitted by the terms and conditions of this Agreement or required by applicable law, the Customer must not:
(a) prepare or develop derivative works of the Courses;
(b) copy, reproduce, sell, resell, rent, lease, time-share, lend, sub-licence, supply, publicly perform or diplay, broadcast, publish, host, trasmit, distribute or redistribute the Courses;
(c) alter, modify, edit, transform or adapt the Courses;
(d) acquire, assert, or assign to any third party any copyright, ownership or any other proprietary rights in or to the Courses;
(e) unbundle or independently use components of the Courses outside the Customer's LMS;
(f) use, incorporate, modify, distribute, provide access to, combine, or integrate with any other work with an open-source license in a manner that would subject all or part of the Courses to require (i) disclosure of source code form to third parties, (ii) licenses to third parties for the purpose of making derivative works, or (iii) redistribution to third parties at no charge;
(g) decompile, de-obfuscate or reverse engineer, or attempt to decompile, de-obfuscate or reverse engineer, the Courses;
(h) incorporate any portion of the Courses into a product or service that competes with the Courses;
(i) remove or obscure any copyright, trademark, and/or proprietary rights notices of Protecht or its licensor(s); or
(j) take audio or video recordings of the Courses,
and the Customer is responsible for the security of copies of the Courses licenced to it in accordance with this Agreement and must use all reasonable endeavours (including all reasonable security measures) to ensure that access to those copies is restricted to persons authorised to use them in accordance with this Agreement.
4. Customer Obligations
4.1 The Customer agrees to supervise Permitted Users and control their access to and use of the Courses and ensure that the Courses are accessed and used in accordance with this Agreement. Customer is responsible for the conduct of Permitted Users as if that conduct was conduct of the Customer. The Customer is liable for any act or omission of a Permitted User that would be a breach of this Agreement as if that breach was a breach of this Agreement by the Customer.
4.2 The Customer undertakes that it will not agree, allow, permit, suffer or acquiesce to any person other than a Permitted User to access or use the Courses.
4.3 For each Course specified in the Commercial Details, the Customer undertakes that the maximum number of Permitted Users it will authorise to access and use that Course will not exceed the number of Permitted Users for that Course specified in the Commercial Details (or as otherwise agreed in writing). For the purposes of this Agreement:
(a) a Course is used when a Permitted User enrols in that Course;
(b) when a Permitted User enrols in a Course, they have until the end of the then current Subscription Period to complete that Course;
(c) after a Permitted User enrols in a Course, that Permitted User may undertake that Course any number of times before the end of the then current Subscription Period; and
(d) Courses that are not used by Permitted Users within the applicable Subscription Period will expire.
4.4 Customer agrees that if the number of Permitted Users who access and use a Course exceeds the number of Permitted Users for that Course specified in the Commercial Details (or as otherwise agreed in writing) then the Customer will pay to Protecht additional fees for the excess number of Permitted Users calculated on a pro-rata basis (or as otherwise agreed in writing).
4.5 You are responsible for:
(a) determining that the Services are adequate for your particular purposes and needs;
(b) providing us with all reasonable and necessary assistance so that we can provide the Services to you, such as timely and reasonable access to your premises, facilities, networks, Information and Representatives;
(c) designating one or more competent Representatives who possess suitable skill, knowledge, and/or experience to oversee the Services;
(d) making timely decisions in connection with the Services;
(e) providing us with accurate and complete Information;
(f) providing us with all Information that is relevant to the Services, even if the same Information has been given to us previously during another engagement;
(g) updating any Information where there has been a material change to that Information;
(h) operating and managing all of your systems, including your LMS; and
(i) any other responsibilities you agree to, including those set out in the Commercial Details.
4.6 You acknowledge that:
(a) our ability to provide the Services depends on you meeting your responsibilities under this Agreement;
(b) we will rely on your Information, the decisions you make and any approvals you give;
(c) Protecht has no obligation to upgrade or update the Courses or to provide support, mainitenance or consultancy services in connection with the Courses; and
(d) some Content, such as embedded videos, may be hosted by Protecht, applications controlled by Protecht, or by external parties. We cannot guarantee or give any other assurance that links to that Content will be maintained.
5. Fees
5.1 In consideration for the supply of the Services, the Customer agrees to pay to Protecht the Fees. The Fees and the basis on which they are calculated are specified in the Commercial Details (or as otherwise agreed in writing).
5.2 Unless otherwise stated, our Fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, "Taxes"). You are responsible for paying all Taxes associated with your purchases under this Agreement. If We have the legal obligation to pay or collect Taxes for which you are responsible under this provision, the appropriate amount shall be invoiced to and paid by you, unless you provide us with a valid tax exemption certificate authorised by the appropriate taxing authority. For clarity, We are solely responsible for taxes assessable against us based on our income, property and employees.
5.3 Fees will be automatically increased by up to 7% on each anniversary of the Effective Date during the Term.
5.4 You agree to pay the Fees in advance, within 30 days after the date of our invoice. All amounts payable to us under this Agreement must be paid by direct credit to our nominated bank account as specified in our invoices, or otherwise notified by us to you. Where amounts remain due and unpaid we may charge you related collection costs (including legal fees) and interest at a rate of 1.5% per month (pro-rated daily) on all overdue amounts, including any interest previously charged. We may also suspend access to and use of the Courses if you do not pay our invoices on time.
5.5 You also agree to pay us for all costs and expenses (including internal time costs and legal costs) on an indemnity basis we suffer or incur if we are required to provide Information about you or the Services to comply with (or challenge) any statutory obligation, court order or compulsory process. Your obligation under this provision applies whether or not we are permitted to make you aware of such a requirement to provide information.
5.6 The Customer must maintain complete and accurate records in accordance with generally accepted practices relating to the performance of its obligations under this Agreement, including access to and use of the Courses. Protecht may at any time audit the Customer’s performance of its obligations under this Agreement, and the Customer must provide Protecht with all co-operation, assistance and information, including access to personnel, premises and systems, reasonably requested by Protecht for that purpose.
6. Liability
6.1 Nothing in this Agreement excludes, restricts or modifies any rights that you have under applicable laws, including consumer and fair trading laws. The Services may come with guarantees that cannot be excluded under applicable consumer and fair trading laws, which means you may be entitled to available remedies under those laws, which may include a resupply or refund, or compensation.
6.2 Apart from any rights you have that cannot lawfully be excluded, the Protecht Group does not make any promises or give any assurances to you about the Services and/or this Agreement. To the maximum extent permitted by law, all other terms, conditions, representations and warranties, whether express or implied by legislation or the common law or otherwise relating to the provision by us of the Services or otherwise in connection with this Agreement are expressly excluded, including warranties of merchantability, fitness for a particular purpose, non-infringement, data accuracy or informational content. To the maximum extent permitted by law, the Protecht Group is not responsible and excludes all liability for the accuracy, reliability, currency, completeness or usefulness of our Courses, or for any decisions made or advice given in reliance on or as a result of the use of any Courses.
6.3 The Protecht Group is not liable to you in any way for any Consequential Loss under any form of action, whether based in contract, tort (including negligence) or any other legal theory. In respect of any Loss for which the Protecht Group may be liable to you under any form of action, whether based in contract, tort (including negligence) or any other legal theory, the Protecht Group’s liability to you for all claims will at all times be limited in the aggregate to the amount which has paid to us for the relevant Services in the three month period preceding the date of any claim by you (or if a series of related claims, then prior to the first of those claims).
6.4 We will only be liable to you for the proportion of the legally payable amounts that we have caused. We will not be liable for any Loss to the extent it is caused by an Unexpected Event.
6.5 If you are not satisfied with our Services, you will provide us with the opportunity to re-perform them or resolve the issues that have arisen before taking any further action.
6.6 Any claim against us must be brought within 12 months after the occurrence of the event, act or omission giving rise to the claim.
6.7 You agree that:
(a) Acces to and use of Content is limited to the Courses you have licensed.
(b) We do not guarantee or give any other assurance that the Courses will function at all or optimally on your deployed systems (including Customer's LMS), Internet browser versions, file size, or other technical infrastructure deployed by you.
(c) You are responsible for access to and use of your LMS by Permitted Users and any person using the Access Credentials of a Permitted User. You must prevent unauthorised use of the Access Credentials of any Permitted User. You must ensure the Courses are not accessed or used by any person other than a Permitted User.
(d) You must notify us immediately of any unauthorised access to or use of your LMS, unauthorised use of the Access Credentials of any Permitted User, or unauthorised access to or use of the Courses.
(e) You acknowledge that the Content is proprietary to the Content Provicers and has substantial commercial value to the Content Providers. You must not do anything in relation to Content that constitutes an infringement of copyright under any applicable laws. All rights of the Content Providers in relation to Content are expressly reserved and, except to the extent of the limited rights granted to Permitted Users, you must not adapt, copy, reproduce, republish, upload, post, perform, transmit or distribute Content in any way
(f) You indemnify the Protecht Group against any and all Loss suffered or incurred by the Protecht Group or any of their respective Representatives (“indemnified persons”) in connection with:
- any unauthorised access to or use of your LMS, unauthorised use of the Access Credentials of any Permitted User, or unauthorised access to or use of the Courses;
- any unauthorised access to or use of any Content; or
- any input, upload or posting of any data or content to your LMS regarding the Courses or the Content,
by you, by any Permitted User or by any person using the Access Credentials of a Permitted User.
(g) The Protecht Group will not be liable to you or any other person to the extent that any liability arises from or in connection with the suspension of or restriction of access to Courses in accordance with this Agreement or any interruption or delay to your LMS.
6.8 To the extent permitted by law, you agree that:
(a) none of our Representatives will have any liability to you (whether in contract, tort (including negligence) or otherwise) under or in connection with this Agreement and/or the Services; and
(b) you will not bring any claim, demand or proceedings under or in connection with this Agreement and/or the Services against any of our Representatives.
7. Termination
7.1 Either of us may terminate this Agreement immediately by notice in writing if the other becomes insolvent or otherwise ceases to carry on business or commits any material breach of this Agreement that is either incapable of being remedied or is not remedied within 14 days after receipt of a notice in writing requiring the breach to be remedied.
7.2 On expiry or termination of this Agreement:
(a) the Customer and all Permitted Users must immediately cease accessing and using the Courses;
(b) the Customer must return or destroy all material in your possession or under your control containing any Content, and irrevocably uninstall and delete from your LMS and other systems all copies of the Courses (and, if requested, provide us with satisfactory evidence that it has done so); and
(c) the Customer must pay us any Fees that are due and unpaid.
7.3 Any provision of this Agreement that is expressly or by implication intended to survive expirty or termination will survive, including clause 3, License; clause 5, Fees; clause 7, Termination, clause 8, Confidentiality; clause 10, Intellectual Property; and clause 11, General.
8. Confidentiality
8.1 Each party agrees to protect and keep confidential any Confidential Information that is given to that party by the other party. In this regard, you acknowledge that our processes, ideas, concepts, techniques and materials, including our Courses, are our property and are Confidential Information.
8.2 Each party will only use the other party’s Confidential Information in connection with the Services. Each party may only disclose the other party’s Confidential Information:
(a) to their Representatives, who will only use and disclose it in connection with the Services;
(b) as required by law, their quality assurance processes or their professional obligations;
(c) to their own professional advisers, service providers and insurers on a confidential basis; or
(d) to anyone else, on a confidential basis, with the prior written consent of the other party.
8.3 Where disclosure is required by law, to the extent permitted by law, the relevant party will (i) inform the other party of the person(s) to whom that party required to disclose the information, the information that requires disclosure, and any other information the other party reasonably requests; (ii) disclose only that portion of the Confidential Information that is required to be disclosed by law, and (iii) use commercially reaonable efforts to ensure that any Confidential Information that is disclosed is protected and kept confidential.
8.4 You agree that we may aggregate your Information and use and disclose that Information in de-identified form as part of research and advice, including benchmarking services.
8.5 Subject to clause 9 and 10, each party will return the other party’s Confidential Information, or destroy it, at any time on request.
9. Personal Information and Electronic Communication
9.1 We will collect, hold and disclose any Personal Information provided to us in connection with the Services in accordance with appliable Privacy Laws. Please refer to our Privacy Policy for details of your rights to access and request correction of any Personal Information that we hold about you.
9.2 If you provide us with any Personal Information of a third party, you confirm that you have collected that Personal Information in accordance with applicable Privacy Laws and the individual concerned has:
(a) authorised the disclosure to and use of their Personal Information by us in accordance with clause 9.1; and
(b) has been informed of their right to access and request correction of their Personal Information.
9.3 You authorise us to communicate with you and others electronically. If you have any doubts about the authenticity of any communication or document purportedly sent by us, please contact us immediately.
10. Intellectual Property
10.1 The Customer acknowledges that:
(a) Courses are our property and are not being sold to the Customer, but are being licenced to the Customer only, on the terms and conditions of this Agreement;
(b) Protecht (and, as applicable, the Content Providers) retain ownership of all Intellectual Property in the Content. We may also retain copies of Information provided to us in the course of us performing the Services; and
(c) nothing in this Agreement will have the effect of assigning or transferring any Intellectual Property to the Customer or any Permitted Users.
10.2 You agree we can use your logos and marks, unless you tell us otherwise.
11. General
11.1 This Agreement is the entire agreement between us concerning the subject matter of this Agreement. It supersedes all prior communications, negotiations, representations, undertakings, arrangements and agreements, either verbal or written between us concerning the subject matter of this Agreement. Any changes to this Agreement must be agreed to in writing by both of us.
11.2 Subject to the following exception, neither of us may transfer, subcontract, assign or novate this Agreement without the prior written consent of the other. We may without your consent transfer, subcontract, assign or novate our rights and/or obligations under this Agreement to any of our Affiliates.
11.3 You agree to comply with all applicable laws, regulations, rules, standards and approved codes of practice in connection with this Agreement.
11.4 We are engaged as an independent contractor. Neither of us is an agent or representative of or has the authority to bind the other. This Agreement is not intended to constitute a partnership, agency, employment, joint venture or fiduciary relationship between us.
11.5 If any of the terms of this Agreement are not legally enforceable then that term or the relevant part of it will either be amended, where possible, to make it enforceable or ignored, but in all other respects this Agreement will have full effect.
11.6 A waiver by one of us of a breach by the other party of any term of this Agreement does not operate as a waiver of another term or a continuing breach by the other of the same or any other term of this Agreement.
11.7 Where this Agreement refers to our Affiliates or Representatives, it is intended to confer a benefit on each Affiliate or Representative, enforceable by them, in accordance with applicable laws of any relevant jurisdiction.
11.8 Each of us will, within a reasonable time of being requested by the other, do all things and execute all documents that are reasonably necessary to give full effect to this Agreement.
11.9 Each of us agrees to use reasonable endeavours to resolve any dispute that arises in connection with this Agreement by mediation before bringing a legal claim or starting legal proceedings against the other. Nothing in this provision prevents either of us from taking immediate steps to seek interlocutory, equitable or other urgent relief.
11.10 This Agreement is governed by the laws of the State of California and applicable United States federal law and each party submits to the exclusive jurisdiction of the the federal and state courts of Los Angeles, California and courts of appeal from them.
12. Definitions
12.1 In this Agreement the following words have the meanings set out below:
Access Credentials means any unique username and password that are used by a Permitted User to access and use your LMS.
Affiliate means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. Control, for the purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
Agreement means the Commercial Details and these Terms and Conditions.
Commercial Details means the contract incorporating these Terms and Conditions, including any contract named “Comercial Details” completed with relevant commercial details relating to the Services to be provided by Protecht to the Customer.
Confidential Information means any information designated as confidential or which might reasonably be expected, based on its content or circumstances of disclosure, to be confidential, including:
(a) the terms of this Agreement and the Services; and
(b) trade secrets and information or material which is proprietary to a party, including the Courses,
but excludes any information that:
(a) is independently acquired or developed without the benefit or use of the other party’s confidential information; and
(b) is disclosed with the other party’s prior written consent, including in accordance with this Agreement.
Consequential Loss means any:
(a) loss of profits, revenue, anticipated savings or business opportunity or interruption;
(b) damage to goodwill;
(c) loss or corruption of data or systems; and
(d) Loss which is indirect, consequential, special, punitive, exemplary or incidental,
arising under or in connection with this Agreement and/or the provision of the Services.
Content means learning and research content and includes: (a) live and interactive and pre-recorded web-based online seminars and events; (b) course materials, e-learning products, question banks, course notes and any other materials supporting a seminar or event; and (c) any other text, documents, presentations, videos and visual images.
Content Providers means the Protecht Group and third party content providers.
Courses means the Content described and selected in the Commercial Details, in a SCORM compatible format supported by the Protecht Group.
Customer means the person identified as the ‘Customer’ in the Commerial Details.
Deliverable means any final form documents, reports or deliverables we provide to you as a result of the Services or this Agreement.
Effective Date means the commencement date of this Agreement as specified in the Commercial Details.
EU GDPR means the General Data Protection Regulation (EU) 2016/679;
Existing Material means any methodologies, technologies or other proprietary information either in existence at or prior to the date of this Agreement or developed by us independently of the Services.
Extension Period has the meaning given in clause 2.1.
Fees means the fees for the Services as specified in, or calculated in accordance with, the Commercial Details (or as otherwise agreed in writing).
Initial Period has the meaning given in clause 2.1.
Information means any information, documents, materials, facts, instructions or Confidential Information provided to us by you or your Representatives or anyone else at your request.
Intellectual Property means all industrial and intellectual property rights throughout the world, whether or not registered or capable of registration, including copyright, trade marks, designs, programming codes, trade secrets, know-how and circuit layouts.
Loss means any losses, liabilities, claims, compensation, penalties, fines, damages, costs or expenses (including internal time costs, interest and taxes where applicable), however caused or arising under or in connection with this Agreement and/or the provision of the Services (whether based in contract, tort (including negligence) or any other legal theory).
Learning Management System or LMS means software used by the Customer to deliver learning and research content, iincluding Courses, to Permitted Users.
Permitted User means a person who is authorised by the Customer to access and use Courses under this Agreement.
Personal Information means information which is personal information or personal data in accordance with the Privacy Laws.
Privacy Laws means all applicable data protection and privacy legislation in force from time to time in the European Union, the United Kingdom, the United States and Australia, including the EU GDPR, the UK GDPR, the Data Protection Act 2018; the Privacy and Electronic Communications Directive 2002/58/EC (as updated by Directive 2009/136/EC), the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426), the California Consumer Privacy Act of 2018 and the Privacy Act 1988 (Cth) (including the Australian Privacy Principles in Schedule 1 of that Act) as amended, consolidated or replaced from time to time.
Representative of a party means any officer, employee, consultant, agent, contractor or subcontractor of that party.
Protecht means the member of the Protecht Group identified as ‘Protecht’ in the Commercial Details.
Protecht Group means Protecht Group Holdings Pty Ltd (ABN 59 158 875 515) and its Affiliates.
Services means the licence of Courses in accordance with this Agreement.
SCORM means Sharable Content Object Reference Model in formats supported by the Protecht Group.
Subscription Period means, separately, the Initial Period and each Extension Period.
Term has the meaning given in clause 2.1.
Terms and Conditions means these Protecht Academy – Customer LMS - Terms and Conditions.
UK GDPR means the EU GDPR as it forms part of the laws of England and Wales, Scotland and Northern Ireland by virtue of section 3 of the European Union (Withdrawal) Act 2018 and as amended by the Data Protection, Privacy and Electronic Communications (Amendments etc.) (EU Exit) Regulations 2019 and 2020.
Unexpected Event means any occurrence, failure or delay under or in connection with this Agreement that is caused or contributed to by an act, omission or event that is beyond our reasonable control, including any:
(a) act, omission or breach of this Agreement by you;
(b) failure of, problem with, or unauthorised access to, the technology infrastructure or environment used by us or our service providers including software defects or errors; and
(c) interference, interception or corruption of an electronic communication.
us means Protecht or both the Customer and Protecht, as the context requires.
we and our means Protecht.
you and your means the Customer.
12.2 In this Agreement, a reference to:
(a) a party includes its successors and permitted assigns;
(b) “including” shall be construed as “including, without limitation”;
(c) our consent shall mean our prior written consent (including by e-mail), with any conditions that we may impose, at our absolute discretion;
(d) agreement between the parties, means express agreement in writing (including by e-mail);
(e) the singular includes the plural and vice versa;
(f) the word person includes an entity, a firm, a body corporate, an unincorporated association or an authority;
(g) a statute includes amendments to that statute and any statute to the extent passed in substitution for that statute; and
12.3 If there is any conflict between these Terms and Conditions and any other part of this Agreement, the following order of priority will apply: (i) the Commercial Terms; and (ii) these Terms and Conditions.