Terms & Conditions
1. TERM
This agreement commences on the Start Date and will continue until the End Date set out in the Key Agreement Details, unless:
(a) terminated in accordance with clause 13; or
(b) renewed by the Licensee by the payment of additional Fees as mutually agreed in writing for a defined additional period.
2. INTELLECTUAL PROPERTY LICENCE
(a) In this agreement, “Intellectual Property Rights” means all copyright, trade mark, design, patent, moral rights, semiconductor and circuit layout rights, trade, business, company and domain names, confidential and other proprietary rights, and any other rights to registration of such rights whether created before or after the date of this agreement both in Australia and throughout the world.
(b) The Licensed Materials are solely owned by the Cyber Safety Project and nothing in this agreement transfers ownerships or assigns any Intellectual Property Rights to the Licensee.
(c) Subject to the terms of this agreement and in consideration of the payment of the Fees, the Cyber Safety Project grants to the Licensee a non-exclusive, non-transferable licence to use the Intellectual Property Rights in the Licensed Materials for the Permitted Purpose for the Term (Licence). The Licence does not include a right to sub-license the Licensed Materials.
(d) The Licensee acknowledges and agrees that the Licence is subject to the following:
(i) the timely payment all Fees;
(ii) the other provisions of this agreement;
(iii) the Licence is non-exclusive, and the Cyber Safety Project may licence the Licensed Materials to third parties without restriction;
(iv) the only use the Licensee is permitted to make of the Licensed Materials is the Permitted Purpose; and
(v) the Licensee must not use the Licensed Materials outside the Distribution Scope.
(e) The Licensee indemnifies Cyber Safety Project against any loss the Cyber Safety Project suffers as a result of the Licensee’s failure to comply with this clause.
3. USER ASSENT TO THESE TERMS
(a) The Licensee must ensure that all persons or organisations who will be granted access to the Licensed Materials in accordance with the Distribution Scope are aware of and comply with the Distribution Scope. This includes not sharing the Licensed Materials with any other persons, either physically or electronically or by any other means.
(b) All persons or organisations who are granted access to the Licensed Materials are subject to this agreement, and the Licensee will be held responsible for any breach of this agreement by any person who is given access to the Licensed Materials.
(c) Without limiting or otherwise affecting the above, if a person accesses our digital toolbox, they will accept these terms and conditions by clicking the tick box
4. QUALITY AND CONTROL
The Licensee must:
(a) only use the Intellectual Property Rights in the Licensed Materials in the manner approved by the Cyber Safety Project from time to time;
(b) immediately cease providing Cyber Safety Lessons to, and cease using any Licensed Materials in relation to, any third party notified to the Licensee by Cyber Safety Project;
(c) not do, or authorise the doing of, any act, matter or thing or omit to do anything whereby the Intellectual Property Rights in the Licensed Materials may be prejudicially affected;
(d) observe any reasonable specifications, directions or instructions given by the Cyber Safety Project as to the nature and quality of goods or services which utilise the Intellectual Property Rights in the Licensed Materials; and
(e) ensure that all Cyber Safety Lessons, and all material in the Licensee’s care, custody or control, which feature the Licensed Materials are of a high quality.
5. NO RIGHTS OVER OPERATIONS
Nothing in this agreement will give the Licensee any rights to:
(a) use, reproduce, emulate or otherwise implement any of the Cyber Safety Project’s:
(i) operations; or
(ii) training programs or training modules; or
(b) use the Licensed Materials to train any person, other than as part of providing Cyber Safety Lessons in the Distribution Scope.
6. FEES
6.1 FEES
(a) In consideration of the grant of the Licence, the Licensee agrees to pay the Cyber Safety Project the Fees in the amounts and at the times set out in the Key Agreement Details.
(b) If the Licensee fails to pay any Fees when due, the Cyber Safety Project will revoke the Licence.
6.2 FEE PAYMENT TERMS
(a) Unless otherwise indicated, amounts stated on an invoice do not include GST. In relation to any GST payable for a taxable supply by the Cyber Safety Project, the Licensee must pay the GST subject to the Cyber Safety Project providing a tax invoice.
(b) The Cyber Safety Project reserves the right to charge credit card surcharges in the event that payments are made using a credit, debit or charge card (including Visa, MasterCard, American Express or Diners Club.
(c) The Licensee must pay Fees using the fee payment methods specified in the Key Agreement Details.
(d) The Licensee agrees to pay the Cyber Safety Project interest at the Agreed Rate on any amount of Fees outstanding under this agreement from the due date to the date of payment.
(e) If the Cyber Safety Project issues an invoice to the Licensee, payment must be made by the time(s) specified in such invoice, and in all other circumstances, the Licensee must pay all Fees within 2 weeks of receiving an invoice for amounts payable.
7. NON-SOLICITICATION
During the Term and for a period of 6 months thereafter, the Licensee and its personnel must not, without the Cyber Safety Project’s prior written approval, employ or engage (or be knowingly involved in either employing or engaging) any officer, employee or contractor of the Cyber Safety Project, which the Licensee or its personnel had any contact with during, or before, the Term.
8. CONFIDENTIAL INFORMATION
8.1 DEFINITION
In this agreement, “Confidential Information” means information of, or provided by, a party that is by its nature confidential information, is designated as confidential, or that the recipient of the information knows or ought to know is confidential (including all commercial information exchanged between the parties), but does not include information which is, or becomes, without a breach of confidentiality, public knowledge.
8.2 CONFIDENTIAL INFORMATION
The parties will not, during or after the Term, disclose Confidential Information directly or indirectly to any third party except:
(a) with the other party’s prior written consent;
(b) as required by law; or
(c) to their Personnel on a need to know basis for the purposes of performing its obligations under this agreement (Additional Disclosees). To avoid doubt, this clause does not permit the Licensee to distribute the Licensed Materials outside of the Distribution Scope.
8.3 BREACH
If either party becomes aware of a suspected or actual breach of this clause 8 by that party or an Additional Disclosee, that party will immediately notify the other party and take reasonable steps required to prevent, stop or mitigate the suspected or actual breach.
8.4 USE
A party may only use the Confidential Information of the other party for the purposes of exercising its rights or performing its obligations under this agreement.
8.5 RETURN
On termination of this agreement, both parties must promptly return or destroy all Confidential Information in the possession or control of the other party.
8.6 ADDITIONAL DISCLOSEES
Each party will ensure that Additional Disclosees keep the Confidential Information confidential on the terms provided in this clause 8. Each party will, when requested by the other party, arrange for an Additional Disclosee to execute a document in a form reasonably required by the other party to protect Confidential Information.
9. PRIVACY
(a) The Licensee agrees to Cyber Safety Project Educator Hub Privacy Policy which can be found on the at https://schools.cybersafetyproject.com.au/privacy.
(b) All personal information collected by the Cyber Safety Project in connection with this agreement will be dealt with by the Cyber Safety Project in accordance with its Privacy Policy. The Cyber Safety Project agrees to comply with its obligations under the Privacy Act 1988 (Cth).
10. WARRANTIES
(a) All express or implied representations and warranties are, to the maximum extent permitted by applicable law, excluded. Where any law (including the Competition and Consumer Act 2010 (Cth)) implies a condition, warranty or guarantee into these Terms which may not lawfully be excluded, then to the maximum extent permitted by applicable law, the Cyber Safety Project’s liability for breach of that non-excludable condition, warranty or guarantee will, at the Cyber Safety Project’s option, be limited to:
(i) in the case of goods, their replacement or repair; and
(ii) in the case of services, a refund or providing the services again.
11. LIMITATION OF LIABILITY
(a) The Licensee uses the Licensed Materials at their own risk and without any reliance on any representation of the Cyber Safety Project. To the maximum extent permitted by law, the Cyber Safety Project limits all liability to any person for loss or damage of any kind, however arising whether in contract, tort (including negligence), statute, equity, indemnity or otherwise, arising from or relating in any way to this agreement to half the fees paid by the Licensee to the Cyber Safety Project, or if no fees have been paid by the Licensee, then to $100 (AUD).
(b) (Indemnity) The Licensee indemnifies the Cyber Safety Project and its employees and agents in respect of all liability for loss, damage or injury which is or may be suffered by any person arising from the Licensee or the Licensee’s representatives’ breach of this agreement, use of any Sale Licensed Materials, Licenced Licensed Materials or services provided by the Cyber Safety Project.
(c) (Consequential loss) The Cyber Safety Project will not be liable for any incidental, special or consequential loss or damages, or damages for loss of data, business or business opportunity, goodwill, anticipated savings, profits or revenue arising under or in connection with this agreement or any goods or services provided by the Cyber Safety Project, except to the extent this liability cannot be excluded under the Competition and Consumer Act 2010 (Cth) or any other applicable law.
12. DISPUTE RESOLUTION
(a) The parties must, without delay and in good faith, attempt to resolve any dispute that arises out of or in connection with this agreement, including with regard to its existence, validity or termination, prior to commencing any proceedings.
(b) If a party requires resolution of a dispute it must immediately submit full details of the dispute to the chief executive officer of the other party or, if the party is an individual, that individual.
(c) If a party has complied with clause 12(b) in respect of a dispute and the dispute has not been resolved within one (1) month from the date of the notice, the parties must endeavour to settle the dispute, including with regard to its existence, validity or termination, by mediation administered by the Australian Disputes Centre (ADC) before having recourse to arbitration or litigation.
(d) The mediation shall be conducted in accordance with the ADC Guidelines for Commercial Mediation operating at the time the matter is referred to ADC (Guidelines).
(e) The terms of the Guidelines are hereby deemed incorporated into this agreement.
(f) The parties acknowledge that compliance with this clause 12 is a condition precedent to any entitlement to claim relief or remedy, whether by way of proceedings in a court of law or otherwise in respect of such disputes, except:
(i) in the case of applications for urgent interlocutory relief; or
(ii) a breach by another party of this clause 12.
13. TERMINATION
13.1 TERMINATION BY THE LICENSOR FOR CAUSE
The Cyber Safety Project may terminate this agreement immediately by notice to the Licensee if:
(a) the Licensee is in breach of any term of this agreement and has failed to remedy the breach within 10 Business Days after notice by the Cyber Safety Project;
(b) the Licensee commits a material breach of this agreement including, without limitation, of clauses 2, 3, or 6;
(c) a substantial change in its directors or in the persons who control the company occurs (legally or beneficially, and only if the Licensee is a company). The reasonable opinion of the Cyber Safety Project about substantial change is conclusive; or
(d) the Licensee becomes subject to any form of insolvency or bankruptcy administration.
13.2 TERMINATION FOR CONVENIENCE
Either party may terminate this agreement for convenience by providing one (1) month’s prior written notice to the other party.
13.3 TERMINATION BY THE LICENSEE FOR CAUSE
The Licensee may terminate this agreement in whole or in part by written notice to the Cyber Safety Project if:
(a) if the Cyber Safety Project has committed a material breach of this agreement and has failed to remedy the breach within 30 days after receiving written notice from the Licensee; or
(b) if the Cyber Safety Project consents to such termination, subject to the Licensee’s fulfillment of any pre-conditions to such consent (for example, payment of a pro-rata portion of the agreed fees).
13.4 EFFECT OF TERMINATION
(a) In the event of termination, the Licensee must:
(i) immediately cease using the Licensed Materials;
(ii) remove the Licensed Materials from all materials in the Licensee’s care, custody or control that features the Licensed Materials, and, if the Licensed Materials cannot be removed, then at the Cyber Safety Project’s option, return or destroy all such material; and
(iii) promptly pay any outstanding Fees owed to the Cyber Safety Project as at the date of termination.
(b) Termination of this agreement will not affect any rights accruing to either party to the date of termination nor any obligation performed to the date of termination or any obligation which expressly or impliedly survives termination of this agreement, including (without limitation) clauses 2, 3, or 6.
(c) Upon termination, any Fees already paid by the Licensee will not be refundable.
14. NOTICES
(a) A notice or other communication to a party under this agreement must be:
(i) in writing and in English; and
(ii) delivered via email to the other party, to the email address specified in this agreement, or if no email address is specified in this agreement, then the email address most regularly used by the parties to correspond regarding the subject matter of this agreement as at the date of this agreement (Email Address). The parties may update their Email Address by notice to the other party.
(b) Unless the party sending the notice knows or reasonably ought to suspect that an email was not delivered to the other party’s Email Address, notice will be taken to be given:
(i) 24 hours after the email was sent; or
(ii) when replied to by the other party,
whichever is earlier.
15. GENERAL
15.1 GOVERNING LAW
This agreement is governed by the law applying in Victoria, Australia.
15.2 JURISDICTION
Each party irrevocably submits to the exclusive jurisdiction of the courts of Victoria, Australia and courts of appeal from them in respect of any proceedings arising out of or in connection with this agreement. Each party irrevocably waives any objection to the venue of any legal process on the basis that the process has been brought in an inconvenient forum.
15.3 AMENDMENTS
This agreement may only be amended by a document signed by each party.
15.4 WAIVER
No party to this agreement may rely on the words or conduct of any other party as a waiver of any right unless the waiver is in writing and signed by the party granting the waiver.
15.5 FURTHER ACTS AND DOCUMENTS
Each party must promptly do all further acts and execute and deliver all further documents required by law or reasonably requested by another party to give effect to this agreement.
15.6 ASSIGNMENT
A party cannot assign, novate or otherwise transfer any of its rights or obligations under this agreement without the prior consent of each other party.
15.7 RELATIONSHIP
The parties are independent contractors for the purposes of this agreement and nothing in this agreement gives rise to any relationship of agency, partnership, employment or joint venture between the parties.
15.8 COUNTERPARTS
This agreement may be executed in any number of counterparts. Each counterpart constitutes an original of this agreement and all together constitute one agreement.
15.9 COSTS
Except as otherwise provided in this agreement, each party must pay its own costs and expenses in connection with negotiating, preparing, executing and performing this agreement.
15.10 ENTIRE AGREEMENT
This agreement embodies the entire agreement between the parties and supersede any prior negotiation, conduct, arrangement, understanding or agreement, express or implied, in relation to the subject matter of this agreement.
15.11 BUSINESS DAYS
If the day on which any act is to be done under this agreement is a day other than a Business Day, that act must be done on or by the immediately following Business Day except where this agreement expressly specifies otherwise.
15.12 GENERAL RULES OF INTERPRETATION
In this agreement:
(a) (singular and plural) words in the singular includes the plural (and vice versa),
(b) (defined terms) if a word or phrase is given a defined meaning, any other part of speech or grammatical form of that word or phrase has a corresponding meaning;
(c) (person) a reference to “person” includes an individual, the estate of an individual, a corporation, an authority, an association, consortium or joint venture (whether incorporated or unincorporated), a partnership, a trust and any other entity;
(d) (party) a reference to a party includes that party’s executors, administrators, successors and permitted assigns, including persons taking by way of novation and, in the case of a trustee, includes any substituted or additional trustee;
(e) (this agreement) a reference to a party, clause, paragraph, schedule, exhibit, attachment or annexure is a reference to a party, clause, paragraph, schedule, exhibit, attachment or annexure to or of this agreement, and a reference to this agreement includes all schedules, exhibits, attachments and annexures to it;
(f) (document) a reference to a document (including this agreement) is to that document as varied, novated, ratified or replaced from time to time;
(g) (currency) a reference to “$” or “dollar” is to Australian currency.
(h) (headings) headings and words in bold type are for convenience only and do not affect interpretation;
(i) (includes) the word “includes” and similar words in any form is not a word of limitation; and
(j) (adverse interpretation) no provision of this agreement will be interpreted adversely to a party because that party was responsible for the preparation of this agreement or that provision.