Enterprise Licence

1          GENERAL

1.1        A person becomes an “Enterprise” for the purposes of this Enterprise Licence Agreement upon completing and submitting the Enterprise Registration Form.

1.2.      A person may only be an “Enterprise” if it is operating a business enterprise and is using the Learnt System for business purposes.

1.3.      The Enterprise acknowledges and agrees that by entering into this Enterprise Licence Agreement, it agrees to, and must comply with the:

(a) Acceptable Use Policy – This explains what the Enterprise can and cannot do in relation to using the Learnt System, Learnt Platform and Learnt Marketplace; and

(b) Privacy Policy – This explains what the Enterprise and Learnt can and cannot do in relation to Personal Information collected, disclosed, used and/or otherwise stored on the Learnt System.

(c) List of Common Definitions – This provides definitions that are commonly used in various Learnt documentation, including but not limited to this document. In this document, unless the context otherwise requires in this document, or as otherwise specified in this document, the definitions in the list of Common Definitions will apply. If there is any inconsistency between this document and the List of Common Definitions, this document will prevail to the extent of any inconsistency.

1.4        This Agreement acts separately and independently to the Publisher Terms. The Publisher Terms are however conditional on the Publisher being a User or an Enterprise. The Publisher cannot be a “Publisher” unless the Publisher is at the same time, a User or an Enterprise. A person can however be a User or an Enterprise and not be a Publisher.

1.5        The Enterprise acknowledges and agrees that this Agreement which the Enterprise has entered into, continues to apply notwithstanding the Enterprise entering into the Publisher Terms. If there is an inconsistency between these documents, the Publisher Terms will prevail to the extent of any inconsistency.

1.6        The User may at its option become a “Publisher” by entering into the Publisher Terms. For the avoidance of any doubt, if the Enterprise is a “Publisher” and ceases to be a “Publisher”, the Enterprise may continue to be a “Enterprise” and this Agreement may continue apply.

1.7        Subject to clause 12.7, this Enterprise Licence Agreement may be varied by Learnt from time to time without further notice to the Enterprise.

2          GRANT OF LICENCES

2.1        Learnt grants to the Enterprise, and the Enterprise accepts, the licence regarding:

(a)         the Enterprise Platform pursuant to clause 3;

(b)         Enterprise Content pursuant to clause 4;

(c)         User Connections pursuant to clause 5; and

(d)         Marketplace Content pursuant to clause 6,

subject to and on the terms and conditions of this Agreement.

2.2        The Enterprise acknowledges and agrees that the grant of the licences referred to in clause 2.1 does not confer any rights (proprietary or otherwise) to the Enterprise, Users or User Connections in relation to, any part of the Learnt System, or any of the Intellectual Property Rights in any part of the Learnt System.

2.3        The Enterprise must ensure that access and use of any part of the Learnt System is restricted to the Enterprise and authorised User Connections only.

2.4        The Enterprise must not allow any person (other than the Enterprise or a User Connection) to access or use any part of the Learnt System.

2.5        The Enterprise must only use, operate and administer, and ensure that each User Connection only uses, operates and administers the Learnt System (or part thereof) for the Enterprise’s own use, lawfully in accordance with the terms of this Agreement, in the manner specified by Learnt and only for the Enterprise Approved Purpose.

2.6        The Enterprise acknowledges and agrees that it must not, and must not allow any person or User Connection, to sell, distribute, market, promote, advertise, license, transfer, vary, part with possession of, use or otherwise deal with any part of the Learnt System (including but not limited to the Marketplace Content) or to fulfil any of the Enterprise’s obligations in this Agreement except as specifically permitted pursuant to this Agreement or as otherwise agreed in writing by the parties.

2.7        The Enterprise must not, and must ensure that User Connections do not, and must not allow any third party to, decompile, create a derivative work of, reverse engineer, de-code, interfere with, or in any way disassemble, copy, modify, reproduce, adapt or tamper with any part of the Learnt System (including but not limited to the Marketplace Content).

3            LICENCE TO CREATE ENTERPRISE PLATFORM

3.1        Learnt grants to the Enterprise, and the Enterprise accepts, a non-exclusive and non-transferable licence for the Term to access and use the Enterprise Platform, Help Guides and Access Codes for the Enterprise Approved Purpose, subject to and on the terms and conditions of this Agreement.

4            LICENCE TO UPLOAD AND STORE ENTERPRISE CONTENT

4.1        Learnt grants to the Enterprise, and the Enterprise accepts, a non-exclusive and non-transferable licence for the Term to upload and store learning and communication resources and courseware, owned by, or licensed to, the Enterprise (excluding the Marketplace Content) on to the Enterprise Platform for the Enterprise Approved Purpose, subject to and on the terms and conditions of this Agreement.

4.2        The Enterprise must ensure that all Enterprise Content provided to Learnt and/or uploaded into the Learnt Marketplace (whether by the Enterprise or by Learnt or a third party on the Enterprise’s behalf), for however long that Enterprise Content is published in the Learnt Marketplace, meets the requirements in clause 4.3.

4.3      The Enterprise must ensure that all Enterprise Content:

(a) is accurate, complete and up to date, and is not in any way false, incorrect, indecent, defamatory or misleading or deceptive;

(b) complies with all applicable laws, regulations and codes;

(c) complies with the Acceptable Use Policy, Privacy Policy and this Agreement;

(d) is of an acceptable quality;

(e) has all disclaimers, limitations, notifications and/or warnings that may be relevant, useful or legally necessary in relation to that Enterprise Content clearly and prominently stated in the Enterprise Content;

(f) is only for educating, instructing, training and/or learning, and not for any other purpose; and

(g) does not contain any financial, legal, professional or any other advice.

4.4       The Enterprise represents, warrants and agrees, at the time of uploading any Enterprise Content to the Enterprise Platform, and again on any change, variation, update or replacement of that Enterprise Content by the Enterprise, and for however long that Enterprise Content is published on the Enterprise Platform and/or Learnt Platform, that the Enterprise and that Enterprise Content comply with the requirements in clause 4.2 and 4.3.

4.5.      The Enterprise acknowledges and agrees that:

(a)        The Enterprise is responsible, at its expense, for preparing, researching, producing, editing and updating the Enterprise Content; and

(b).       Learnt may not review or verify the Enterprise Content and relies solely on the Enterprise to ensure that the Enterprise and Enterprise Content comply with the requirements and representations made in clauses 4.2, 4.3 and 4.4.

4.6.      The Enterprise must monitor and review the Enterprise Content on a regular basis to ensure it meets the requirements in clauses 4.2, 4.3 and 4.4. If for any reason the Enterprise or the Enterprise Content cease to comply with such requirements, the Enterprise must at its own time and expense, change, vary, update or replace that Enterprise Content.

4.7.     The Enterprise acknowledges and agrees that notwithstanding any other provision of this Agreement, the Publisher Terms or any other Learnt policy or document, the Enterprise is solely responsible and liable for the Enterprise Content.

5            LICENCE TO FORM USER CONNECTIONS

5.1        Learnt grants to the Enterprise, and the Enterprise accepts, a non-exclusive and non-transferable right to request that Learnt grant a licence to an individual for the Term to allow that individual to access and use the Learnt Platform as a “User” and to be connected to the Enterprise on the Enterprise Platform as a “User Connection”, subject to and on the terms and conditions of this Agreement.

5.2        The Enterprise acknowledges and agrees that as a User is in control of their own learning journey, the Enterprise is granted the right to request that Learnt grant a licence to a User and the User has the option to accept such licence. The Enterprise is not granted the right to grant sub-licences to Users.

5.3        The parties acknowledge and agree that notwithstanding clause 5.1 or 5.2, Learnt is not obliged to grant a licence to a person.

5.4        The Enterprise acknowledges and agrees that it is liable for the User Connection’s conduct in relation to the User Connection’s access to, and use of, the Learnt System and Enterprise Platform during the Term.

5.5        The parties acknowledge and agree that the Enterprise or a User Connection or Learnt may terminate the connection between the Enterprise and that User Connection on the Enterprise Platform at any time. In such circumstances:

(a)         the User Connection will cease to be a “User Connection” for the purposes of this Agreement;

(b)         the User Connection will cease access to the Learnt System and Enterprise Platform;

(c)         the Enterprise will cease to be liable for that User Connection in relation to that User’s access and use of the Learnt System and Enterprise Platform; and

(d)         the Learnt Profile of the User Connection (including but not limited to the record of all learning the User Connection has obtained from the User Connection’s access and use of the Enterprise Platform and the User Connection’s connection with the Enterprise) may continue to be retained on the Learnt Platform and may be accessible by that individual.

5.6        The Enterprise acknowledges and agrees that if Learnt or the User Connection may terminate a User Connection’s licence with Learnt to access and use the Learnt Platform as a “User” at any time with notice, and such termination will cause the connection between the Enterprise and the User Connection on the Enterprise Platform to be terminated.

6            LICENCE TO ACCESS AND USE MARKETPLACE CONTENT

6.1        Learnt grants to the Enterprise, and the Enterprise accepts, a non-exclusive and non-transferable licence for the Term to access and use the Marketplace Content that has been added to the Enterprise’s Monthly Plan, Annual Plan or Custom Plan pursuant to clause 11, for the Enterprise Approved Purpose, subject to and on the terms and conditions of this Agreement.

6.2.     The Enterprise acknowledges and agrees that whilst Learnt may endeavour to ensure that the Marketplace Content meet various legal and other requirements, Learnt does not, and cannot, make any warranty or representation whatsoever, in any way or form in relation to the Marketplace Content.

6.3.     Learnt does not, and cannot make any warranty or representation that Marketplace Content:

(a)         is accurate, complete or up to date, or that it is not in any way false, incorrect, indecent, defamatory or misleading or deceptive;

(b)        complies with all applicable laws, regulations and codes;

(c)         complies with the Acceptable Use Policy, Privacy Policy or the Publisher Terms;

(d)        is of an acceptable quality;

(e)        is written in English or is provided in a particular format;

(f)         has all disclaimers, limitations, notifications and/or warnings that may be relevant, useful or legally necessary in relation to the Marketplace Content clearly or prominently stated in the Marketplace Content;

(g)         will achieve or be suitable for the purpose of educating, instructing, training and/or learning; or

(h)         does not contain any financial, legal, profession or any other advice.

6.4        Whilst Learnt will endeavour to ensure that Marketplace Content meets certain requirements, due to the volume, breadth and depth of content, and third party production and creation of content, Learnt does not, and cannot, verify or ensure that all Marketplace Content meets such requirements. The Enterprise acknowledges and agrees that it accesses, uses and relies on such Marketplace Content entirely at the Enterprise’s own risk, and holds Learnt and its Related Entities and their licensors free of any liability whatsoever.

6.5.       The Enterprise acknowledges and agrees that:

(a)         each Course and Playlist must only be used for the purpose for which it was written or created for;

(b)         each Course or Playlist has typically been written or created for its particular jurisdiction; and

(c)         there may be limitations and restrictions regarding the usefulness of a Course or Playlist. If the Enterprise has a question regarding a Course, the Enterprise should contact the Publisher. If the Enterprise has a question regarding a Playlist, the Enterprise should contact Learnt.

7            UPDATES AND MAINTENANCE

7.1        The Enterprise acknowledges and agrees that Updates to the Learnt Platform, Learnt System, Learnt Marketplace and Marketplace Content may be released as and when they become available. The Enterprise acknowledges and agrees that the content and timing for the release of any such Updates will be at Learnt’s sole discretion and Learnt will not be under any obligation to provide such Updates to the Learnt Platform, Learnt System, Learnt Marketplace or Marketplace Content at any time.

7.2        The Enterprise acknowledges and agrees that from time to time the Learnt Platform, Learnt System, Learnt Marketplace and/or Marketplace Content may experience downtime to provide Updates to the Learnt Platform, Learnt System, Learnt Marketplace and/or Marketplace Content or to conduct other maintenance, repairs, replacement, inspection or improvement of the Learnt Platform, Learnt System, Learnt Marketplace and/or Marketplace Content. Such downtime may occur at any time without notice to the Enterprise. Learnt will whenever possible, schedule such downtime outside of business hours.

8            ENTERPRISE SERVICES

8.1        Before or during the Term, the Enterprise may request that Learnt provide Enterprise Services.

8.2        Where the Enterprise requests that Learnt provide Enterprise Services pursuant to clause 8.1, and Learnt is prepared to provide such Enterprise Services, Learnt and the Enterprise may agree to enter into an Enterprise Services Agreement.

8.3        If the Enterprise Services provided from time to time include development of a Customisation, upon payment of the fees for the Enterprise Services in respect of that Customisation in accordance with the Enterprise Services Agreement, and subject to the terms and conditions of that Enterprise Services Agreement, that Customisation will become part of the “Enterprise Platform” for the purposes of this Agreement, and the Enterprise will have a licence to access and use that Customisation as part of the Enterprise Platform.

8.4        If the Enterprise Services provided from time to time include creation of Custom Content, upon payment of the fees for the Enterprise Services in respect of that Custom Content in accordance with the Enterprise Services Agreement, and subject to the terms and conditions of the Enterprise Services Agreement, that Custom Content will be treated as, and become, part of the “Enterprise Content” for the purposes of this Agreement.

9            ENTERPRISE OBLIGATIONS

9.1        The Enterprise must for the Term:

(a)         provide in a timely manner, all information, Personal Information, documentation, Raw Content and approvals reasonably required by Learnt to enable Learnt to provide the Enterprise and the User Connections with access and use of the Learnt System and to provide the Enterprise Services (if applicable), and to provide the Enterprise Licence and Content Licence in accordance with  this Agreement;

(b)         provide and comply with minimum technology requirements as reasonably required by Learnt from time to time, to enable Learnt to provide the Enterprise and the User Connections with access and use of the Learnt System, and to provide the Enterprise Licence and Content Licence in accordance with  this Agreement;

(c)         ensure that all information, Personal Information and Raw Content provided to Learnt  or uploaded to the Enterprise Platform (whether by the Enterprise or by a third party on the Enterprise’s behalf) and Enterprise Content is accurate, complete and up to date, and is not in any way false, incorrect, indecent, defamatory or misleading or deceptive and complies with all applicable laws, regulations and codes;

(d)         ensure that the Enterprise and the User Connections only use the Learnt System for the Enterprise Approved Purpose; and

(e)         comply with Learnt’s policies in place from time to time which relate to the Learnt System, Learnt Platform and/or Learnt Marketplace including but not limited to the Acceptable Use Policy and Privacy Policy.

9.2        The Enterprise must, both during and after the Term:

(a)         immediately notify Learnt if it becomes aware of any unauthorised access or use of any part of the Learnt System, or any infringement of the Intellectual Property Rights of Learnt or its licensors;

(b)         provide assistance and cooperation as and when reasonably requested by Learnt including implementing practicable remedies to stop breaches or improper or unauthorised use of the Learnt System from occurring; and

(c)         act in good faith at all times towards Learnt and its Related Entities and other Users, Enterprises and Publishers on the Learnt Platform.

10         PLANS

10.1     The Enterprise must agree to a Monthly Plan, Annual Plan or Custom Plan for the Term. The Enterprise is deemed to agree to a plan by selecting or agreeing to it on the Enterprise Registration Form or Custom Plan, or upgrading or downgrading to that plan pursuant to clause 13.

10.2     The type of plan agreed to pursuant to clause 10.1, will determine the number of User Connections who may be connected to the Enterprise on the Enterprise Platform at any one time during plan, the Enterprise Licence Fee payable by the Enterprise in respect of the Enterprise Licence, the Content Licence Fee payable in respect of the Content Licence, and the period for which the Enterprise will have the Enterprise Licence and Content Licence.

10.3     Upon agreeing to a Monthly Plan, Annual Plan or Custom Plan (as the case may be), the Enterprise is liable for, and must pay the Enterprise Licence Fees and Content Licence Fee for that plan, on and from the Plan Start Date, and on every Plan Anniversary Date of that plan, subject to and on the terms and conditions of this Agreement.

10.4     The Enterprise Licence Fee:

(a)         for a Monthly Plan, is the Enterprise Licence Fee for a Monthly Plan as specified on the Website;

(b)         for an Annual Plan, is the Enterprise Licence Fee for an Annual Plan as specified on the Website; and

(c)         for a Custom Plan, is the Enterprise Licence Fee for a Custom Plan as specified in the Custom Form.

10.5     The Content Licence Fee for a plan for the purposes of clause 10.3, is the total of all Total Content Fees for all Sub-licences of Courses and Playlists added to that plan pursuant to clause 11.2, and calculated in accordance with clause 11.4.

10.6     A plan will commence on the Plan Start Date.

10.7     At the end of the Plan Period for a plan, that plan (including the Enterprise Licence and all Content Licences in respect of all Sub-licences of Courses and Playlists on the plan as at that date that have not been cancelled), will automatically renew for the Plan Period it was on immediately prior to the renewal, commencing on the Plan Anniversary Date, unless otherwise agreed in writing or in a Custom Plan.

10.8     The parties agree that where a Custom Plan specifies special conditions, the parties will comply with such special conditions.

10.9     The parties acknowledge and agree that upon selecting or upgrading a plan, and/or adding a Sub-licence of a Course or Playlist to a plan, pursuant to this Agreement, Learnt grants the Enterprise the right to the selected, upgraded or added Enterprise Licence or Content Licence in accordance with that plan, and any consideration paid for such plan is for the grant of that right at that time, irrespective of whether and to what extent the Enterprise Licence or Content Licence is subsequently accessed and/or used by the Enterprise and/or User Connections.

11         MARKETPLACE CONTENT

11.1     Unless otherwise agreed in a Custom Plan or in writing, the Enterprise may agree to sub-licence a Course or Playlist from Learnt by adding a Sub-licence of the Course or Playlist to its plan subject to, and in accordance with the terms and conditions in this clause 11, and any other terms and conditions applicable to that Sub-licence.

11.2     The Enterprise may add a Sub-licence of a Course or Playlist to its plan:

(a)         at the Commencement Date, by selecting or agreeing to it on the Enterprise Registration Form or Custom Plan; or

(b)         during the Term, by notifying Learnt through the Learnt Platform, or if there is a Custom Plan, by agreement in writing.

11.3     Upon the Enterprise adding a Sub-licence of a Course or Playlist to its plan:

(a)         the Enterprise is liable for, and must pay, the Total Content Fee for that Sub-licence of that Course or Playlist, for the Plan Period; and

(b)         the Course or Playlist of such Sub-licence becomes part of the Marketplace Content licensed pursuant to that plan,

subject to, and on the terms and conditions of this Agreement.

11.4     Subject to clause 11.5 and 11.6, the Total Content Fee for a Sub-licence of a Course or Playlist for a Monthly Plan, Annual Plan or Custom Plan, will be the Monthly Content Fee (Enterprise) for that Sub-licence of a Course or Playlist multiplied by the total number of Months in the Plan Period for that plan.

11.5     For the Plan Period during which a Sub-licence of a Course or Playlist is added pursuant to clause 11.2, the Total Content Fee payable pursuant to clause 11.4 will be adjusted on a pro-rata basis, so that the Enterprise is liable to only pay the Total Content Fee in respect of the period commencing on the date the Sub-licence of the Course or Playlist was added and ending at the end of that Plan Period.

11.6     The Enterprise must pay the amount in clause 11.5 in respect of a Sub-licence of a Course or Playlist:

(a)         if on a Monthly Plan or Annual Plan, on the date that Sub-licence of a Course or Playlist is added to the plan;

(b)         if on a Custom Plan and monthly instalments, in respect of the monthly instalment period of the Plan Period during which that Sub-licence of a Course or Playlist is added, as a pro-rata payment for the remainder of that monthly instalment period, then for the remainder of the amount in clause 11.5, as monthly instalments paid at the same time as payment of the Enterprise Licence Fee; and

(c)         if on a Custom Plan and annual instalments, in respect of the annual instalment period of the Plan Period during which that Sub-licence of a Course or Playlist is added, as a pro-rata payment for the remainder of that annual instalment period, then for the remainder of the amount in clause 11.5, as annual instalments paid at the same time as payment of the Enterprise Licence Fee.

11.7     Subject to clause 11.5 and 11.6, the Enterprise must pay the Total Content Fee for a Sub-licence of a Course or Playlist for a plan, in advance on the same payment terms as the Enterprise Licence Fee for that plan, subject to and in accordance with the terms and conditions in clause 12.

11.8     Unless otherwise agreed in a Custom Plan or in writing, the Enterprise may cancel a Sub-licence of a Course or Playlist and remove it from a plan during the Term, by notifying Learnt, or if there is a Custom Plan, by agreement in writing.

11.9     If the Enterprise cancels a Sub-licence of a Course or Playlist and removes it from a plan pursuant to clause 11.8:

(a)         access and use of the Course or Playlist for that Sub-licence will cease on the expiry of the current Plan period for that plan or such earlier cancellation date as determined by Learnt;

(b)         no refunds will be payable; and

(c)         if the Enterprise is on a Custom Plan, the Enterprise must pay on the date of cancellation, the outstanding instalments for the Total Content Fee payable for the Plan Period in respect of that cancelled Sub-licence of a Course or Playlist.

11.10   The Enterprise acknowledges and agrees that, notwithstanding any other provision of this Agreement, Learnt may cancel a Sub-licence of a Course or Playlist and removes it from a plan during the Term without prior notice and for any reason.

11.11   If Learnt cancels a Sub-licence of a Course or Playlist and remove it from a plan pursuant to clause 11.10:

(a)         Learnt will notify the Enterprise in writing as soon as possible;

(b)         access and use of the Course or Playlist for that Sub-licence will cease on that date of cancellation or such other date as determined by Learnt;

(c)         subject to clause 11.11(d), no refunds will be payable; and

(d)         if the Enterprise is on an Annual or Custom Plan, Learnt may consider providing a refund or credit in respect of any remaining part of the Plan Period that has been paid for in advance or is yet to be paid, but for which the Enterprise will be unable to access and/or use the Course or Playlist for that Sub-licence, due to cancellation by Learnt pursuant to clause 11.10.

11.12   The Enterprise acknowledges and agrees that, notwithstanding any other provision of this Agreement, Learnt may change, vary, replace and/or suspend a Course, Playlist or Sub-licence of a Course or Playlist, or any part of a Course or Playlist, and/or may replace, suspend or remove a Course or Playlist or any part of a Course or Playlist from the Learnt Marketplace, or may replace a Course or remove a Course from a Playlist, during the Term without notice and for any reason, and without any liability whatsoever.

11.13   The Enterprise acknowledges and agrees that any change, variation, update, replacement, suspension or removal, or cancellation of a Course, Playlist or Sub-licence of a Course or Playlist, pursuant to clause 11.10 or 11.12 will not give the Enterprise any right or reason to terminate this Agreement, withhold payments of any amounts under this Agreement, claim that there has been any misrepresentation or breach of agreement or warranty, or claim that it has any other legal claim or right of indemnity.

12         FEES

12.1     In consideration for Learnt granting the Enterprise Licence pursuant to clauses 2, 3, 4 and 5, the Enterprise must pay Learnt the Enterprise Licence Fee in accordance with clause 10 and 12.

12.2     In consideration for Learnt granting the Content Licence pursuant to clause 6, the Enterprise must pay Learnt the Content Licence Fee for the Marketplace Content, in accordance with clause 10, 11 and 12.

12.3     Subject to clauses 11.5 and 11.6, the Enterprise will be invoiced:

(a)         for a Monthly Plan or Annual Plan, the Enterprise Licence Fee and Content Licence Fee, in advance for each Plan Period of the Term;

(b)         For a Custom Plan, the Enterprise Licence Fee and Content Licence Fee, in advance, in monthly or annual instalments (as specified in the Custom Plan), for each Plan Period of the Term; and

(c)         upon adding a Sub-licence of a Course or Playlist pursuant to clause 11.

12.4     The Enterprise must pay the fees specified in an invoice, upon receipt of that invoice, by direct debit or credit card or by such other payment method as agreed by the parties in a Custom Plan or otherwise in writing.

12.5     The Enterprise is deemed to accept and agree to the amount invoiced unless the Enterprise notifies Learnt in writing within 7 days of date of invoice.

12.6     The Enterprise acknowledges and agrees that, except as otherwise required at law, no fees are refundable.

12.7     Unless otherwise agreed by the parties in a Custom Plan or specifically in writing, Learnt may vary the Enterprise Licence Fees by providing the Enterprise with at least 30 days written notice, and such variation will take effect on and from the next Plan Period. Learnt may vary the Content Licence Fee from time to time without notice.

12.8     The Enterprise must reimburse Learnt for all expenses and costs (including but not limited to legal costs and debt recovery costs) incurred by Learnt, or for which Learnt is liable for, in recovering any and all overdue amounts payable pursuant to this Agreement.

12.9     Payments of all amounts payable to Learnt pursuant to this Agreement will only be deemed received by Learnt upon receipt of cleared funds. Payments must be made in full without any abatement, set off or deduction.

12.10   Notwithstanding any other provision of this Agreement, upon providing 5 Business Days notice to the Enterprise, Learnt may suspend access and use of any part or all of the Learnt System and/or the provision of Enterprise Services if:

(a)         any amounts payable by the Enterprise pursuant to this Agreement or a Related Agreement are overdue; or

(b)         the Enterprise is in breach of this Agreement or a Related Agreement, or any other agreement with, or policy of, Learnt or any of its Related Entities,

without any liability whatsoever for any loss or damage suffered by the Enterprise, a User, a User Connection or any third party.

13         UPGRADING OR DOWNGRADING A PLAN

13.1     Unless otherwise agreed in a Custom Plan or in writing, the Enterprise may upgrade or downgrade its plan in accordance with this clause 13.

13.2     During the Term, the Enterprise may upgrade its plan to a plan for a longer period or to increase the number of User Connections, or downgrade its plan for a shorter period or to reduce the number of User Connections, by notifying Learnt, or if there is a Custom Plan, by agreement in writing.

13.3     If the Enterprise upgrades or downgrades its plan pursuant to clause 13.2:

(a)         the current plan is deemed to end on the date of such upgrade or downgrade;

(a)         no refunds are payable in relation to the Enterprise Licence Fees or the Content Licence Fee;

(b)         the Enterprise is deemed to enter into a new plan on the date of such upgrade or downgrade, and such date will be the “Plan Start Date” for that plan for the purposes of this Agreement;

(c)         the Enterprise will be liable for, and must pay, the Enterprise Licence Fee and Content Licence Fee in that new plan, in accordance with the terms for that new plan; and

(d)         if the Enterprise has been on a Custom Plan and downgrades or upgrades its plan pursuant to clause 13.2, the Enterprise must pay on that same date, the outstanding instalments for the Enterprise Licence Fees and Content Licence Fee payable for the Plan Period in that Custom Plan.

14         GST

14.1     GST, GST law and other terms used in clause 14 (except Recipient) have the meanings ascribed to those terms by the A New Tax System (Goods and Services Tax) Act 1999 (as amended from time to time) or any replacement or other relevant legislation and regulations, except that GST law also includes any applicable rulings.

14.2     If any GST becomes payable by a party to this Agreement (Supplier) in relation to any supply that it makes pursuant to or in connection with this Agreement:

(a)         unless otherwise stated in this Agreement, any consideration provided for that supply pursuant to this Agreement is inclusive of GST;

(b)         an additional amount will be payable by the party providing consideration for that supply (Recipient) equal to the amount of GST payable by the Supplier in relation to that supply; and

(c)         the Supplier will provide a tax invoice to the Recipient in respect of that supply.

14.3     Where any amounts payable by the Enterprise are stated inclusive of GST, such amounts will be increased by the amount of any increase in the GST.

15         TERM AND TERMINATION

15.1     This Agreement commences on the Commencement Date and continues until terminated in accordance with this Agreement.

15.2     The Enterprise may terminate this Agreement at any time with written notice to Learnt (except as otherwise specifically provided in a Custom Plan or Related Agreement).

15.3     Learnt may terminate this Agreement at any time with 3 months written notice to the Enterprise (except as otherwise specifically provided in a Custom Plan or Related Agreement).

15.4     A party may terminate this Agreement immediately with written notice to the other if:

(a)         the other party is in material breach of any of its obligations or warranties pursuant to this Agreement and has failed to rectify that breach within 30 days (or where the breach is non payment of money, 14 days) of written notice requiring remedy of the breach. A written notice must state the nature, grounds and details of such breach; or

(b)         the other party has a receiver, receiver and manager, administrator, liquidator or controller appointed, is unable to pay its debts or ceases to carry on its business.

15.5     This Agreement may be terminated automatically pursuant to a Related Agreement or as otherwise provided in a Custom Plan (unless otherwise specified in this Agreement or the Custom Plan or the Related Agreement).

15.6     Upon the termination of this Agreement:

(a)         this Agreement is deemed to end on that date,

(b)         no refunds are payable;

(c)         the Enterprise Licence and Content Licence will immediately terminate (and all Sub-licences of Courses and Playlists will immediately be cancelled and the provisions in clause 11.9 will apply);

(d)         If the Enterprise is on a Custom Plan, the Enterprise must pay on that date of termination, the outstanding instalments for the Enterprise Licence Fees and Content Licence Fee payable for that Plan Period;

(e)         any incomplete Enterprise Service Agreements which refer to this Agreement will automatically terminate;

(f)          the Enterprise must immediately cease accessing and using the Learnt System (including all Customisations);

(g)         the Enterprise must immediately cease uploading, accessing and using the Enterprise Content on the Enterprise Platform, but may export, or engage Leant no later than 30 days after termination to provide Enterprise Services to export, such Enterprise Content off the Enterprise Platform;

(h)         Enterprise Content will be deleted from the Enterprise Platform 90 days after termination without further notice or liability;

(i)           the Enterprise must immediately cease accessing and using the Marketplace Content;

(j)           the Enterprise must immediately cease requesting that Users access and use the Enterprise Platform; and

(k)         the Enterprise is deemed to terminate the connection with all User Connections as at the date of termination, pursuant to clause 5.5, and clause 5.5 will apply; and

(l)           the Publisher Terms in effect (if any) will immediately terminate.

16         LIABILITY

16.1     Learnt and its Related Entities will not be liable to the Enterprise for, and the Enterprise indemnifies and will keep indemnified, Learnt, its Related Entities, and their officers and employees from all present and future claims (including but not limited to third party claims), actions, demands, proceedings, threats, losses (including consequential losses), costs (including but not limited to legal costs), expenses, penalties and liabilities incurred, suffered or brought against Learnt, its Related Entities or any of their officers or employees arising from:

(a)         the Enterprise’s material breach of any of its obligations or warranties pursuant to this Agreement;

(b)         the Enterprise and/or a User Connection being negligent in the use and/or access of the Learnt System and/or Enterprise Platform licenced to the Enterprise pursuant to this Agreement;

(c)         the Enterprise’s and/or a User Connection’s breach of the Intellectual Property Rights of Learnt or its licensors;

(d)         the Enterprise Content (including but not limited to any third party claims made against the Enterprise in relation to the Enterprise Content);

(e)         any third party claims for breach of contract or infringement of Intellectual Property Rights;

(f)          the access and use of, and reliance on, the Enterprise Content by User Connections;

(g)         the access and use of Marketplace Content by the Enterprise and/or User Connections; or

(h)         any dispute, allegation or claim involving or relating to the Enterprise or the Enterprise Platform (provided such dispute, allegation or claim was not caused knowingly by Learnt’s breach or negligence).

16.2     Notwithstanding any other provision of this Agreement, in no event will Learnt or its Related Entities be liable to the Enterprise, Users or User Connections for:

(a)         any third party claims or any remote, indirect, consequential, special or incidental loss or damage;

(b)         any change, variation, update, replacement, suspension or removal pursuant to clause 11.

(c)         any actions of Users, Enterprises or Publishers in respect of Enterprise Content;

(d)         any loss of Personal Information or Enterprise Content;

(e)         any infringement of the Enterprise’s Intellectual Property Rights by anyone other than Learnt; or

(f)          any loss, damage, dispute or other claim arising from any reliance on, or use of, any part of the Learnt System (including but not limited to the Learnt Marketplace) by the Enterprise.

16.3     The Enterprise acknowledges and agrees that the liability of Learnt and its Related Entities, where the law does not permit liability for breach of a term implied by law to be excluded but does permit it to be limited, will be limited to, at Learnt’s option:

(a)         in the case of goods, the replacement, repair or resupply of those goods or the cost of replacement, repair or resupply;

(a)         in the case of services, the resupply of those services or the cost of resupply;

(b)         in the case of where a replacement, repair or resupply of goods or services is not possible or practical, a full or partial refund of fees paid to Learnt in relation to such goods or services during the immediately preceding 3 months.

16.4     The Enterprise acknowledges and agrees that:

(a)         Learnt makes no guarantees, representations or warranties of any kind, that Marketplace Content is accurate, complete, up to date or legally compliant, or that it will be able to be accessed and used for the entire Plan Period;

(b)         Marketplace Content is not intended to be professional advice and must not be relied upon as such, and the Enterprise and User Connections should obtain independent advice tailored to their specific circumstances, needs and objectives;

(c)         the Enterprise relies on, and uses, the Learnt System (including but not limited to the Marketplace Content), entirely at its own risk; and

(d)         Learnt will not be liable to the Enterprise or any User Connection for any loss, damage, dispute or other claim arising from any reliance on, or use of, any part of the Learnt System (including but not limited to Marketplace Content).

16.5     The Enterprise acknowledges and agrees that Learnt will not be liable to the Enterprise for any loss or damage arising from, the maintenance, repair, replacement, inspection or improvement of the Learnt Platform, Learnt System, Learnt Marketplace and/or Marketplace Content, any downtime of the Learnt Platform, Learnt System, Learnt Marketplace and/or Marketplace Content, any release, delay, implementation or impact of an Update, any inability of the Enterprise or the User Connections to access and/or use the Learnt Platform, Learnt System, Learnt Marketplace and/or Marketplace Content, or any migration to a new third party provider.

16.6     The Enterprise acknowledges that:

(a)         the delivery of the Learnt System is dependent on a number of factors outside Learnt’s control, including traffic on and technical difficulties with the internet;

(b)         access or use of the Learnt System may not be continuous or uninterrupted and there may be associated interruptions and failures of the Learnt System,

and the Enterprise agrees that, without limitation, Learnt and its Related Entities will not be held liable for any direct or indirect loss or damage incurred solely or in part from one or more of these factors arising.

17         WARRANTIES

17.1     To the extent permitted by law, Learnt makes no guarantees, representations or warranties of any kind, express or implied with respect to any part of the Learnt System, or the effectiveness or usefulness of, or results to be obtained from, the Learnt System.

17.2     The Enterprise warrants that as at the Commencement Date, and on every Plan Anniversary Date:

(a)         it is able to enter into and fulfil its obligations pursuant to this Agreement;

(b)         entry into this Agreement and the performance of this Agreement will not put it in breach of any obligation to any third party as at the date of execution of this Agreement, and throughout the Term;

(c)         it is not under any obligation or restriction that would interfere with or restrict the performance of its obligations pursuant to this Agreement; and

(d)         all representations, warranties and undertakings are true and correct to the best of its knowledge.

18         INTELLECTUAL PROPERTY

18.1     The Enterprise acknowledges and agrees that Learnt or its licensors owns all right, title and interest in all Intellectual Property Rights in:

(a)         the Enterprise Platform, Help Guides, Customisations and Learnt System, and any, modification, upgrade and variation of the Enterprise Platform, Help Guides, Customisations and Learnt System, and in all underlying source and object code;

(b)         the Marketplace Content;

(c)         the Works (including but not limited to Custom Content and Customisations) and all other materials which come into existence as a result of, or arising from, this Agreement, the grant of the Enterprise Licence and/or Content Licence and/or the performance of the Enterprise Services,

except as provided in clause 18.2.

18.2     The parties acknowledge and agree that the Enterprise or its licensors own all Intellectual Property Rights in the Raw Content and the Enterprise Content (except to the extent it comprises Custom Content created by Learnt).

18.3     The Enterprise must not infringe, and must ensure that the User Connections do not infringe, the Intellectual Property Rights of Learnt or its licensors.

18.4     The parties acknowledge and agree that Enterprise Content may be placed on the Enterprise Platform to enable the Enterprise to use the Learnt System properly and efficiently for the Enterprise Approved Purpose in accordance with this Agreement.

18.5     The Enterprise warrants that the Enterprise or its licensors hold all right, title and interest in the Intellectual Property Rights in the Enterprise Content and Raw Content, and/or is authorised by the person who holds all right, title and interest in the Intellectual Property Rights in the Enterprise Content and/or Raw Content, to use such Intellectual Property Rights in the manner contemplated by the parties pursuant to this Agreement.

18.6     The Enterprise warrants that the use of the Enterprise Content on the Enterprise Platform and/or in the Learnt System as contemplated by this Agreement will not breach any third party agreement or infringe any third party Intellectual Property Rights.

18.7     The Enterprise acknowledges and agrees that the Enterprise does not have, and nothing in the Learnt System or this Agreement will be construed as granting the Enterprise, any licence or right to use any Intellectual Property Rights of Learnt or its Related Entities or their licensors except as expressly stated in this Agreement, the Enterprise Services Agreement or with the express written consent of Learnt or its licensors.

19         PRIVACY

19.1     Each party agrees to collect, disclose, use, store and otherwise handle all Personal Information which it has placed on the Enterprise Platform, in accordance with the Privacy Act 1988.

20         CONFIDENTIALITY

20.1     The Enterprise must not disclose to any person any information (including but not limited to documents, information, strategies, know how, methodology, business practices and data) relating to any part of the Learnt System, this Agreement or the Enterprise Services, or relating to the affairs or business of Learnt, which come into the Enterprise’s possession in the course of or by reason of this Agreement, or relating to, or evidencing, this Agreement itself, either during the Term or any time thereafter, except in the proper course of the Enterprise’s obligations pursuant to this Agreement or as required by law or as agreed by the parties in writing.

21         FORCE MAJEURE

21.1     If Learnt is prevented from or delayed in complying with an obligation by an event beyond its reasonable control (including but not limited to telecommunication, internet or power failure or steady supply of same, war, act of terrorism, national emergency, pandemic, inclement weather, flood, fire, earthquake, cyclone, natural catastrophe, import or export embargo, boycott, power failure, shortage of materials or transportation, change to legislation, regulation, code or by-law, breakdown or destruction of plant and equipment, strike or lockout), performance by Learnt of that obligation is suspended during the time and only to the extent that compliance is prevented or delayed. The Enterprise acknowledges and agrees that Learnt and its Related Entities will not be held liable for any loss or damage incurred by the Enterprise arising or relating to such failure to comply.

22         NOTICES

22.1     A notice, approval, consent or other communication in connection to this Agreement must be in writing and is deemed to be given by the sender and received by the receiver:

(a)         if delivered in person, when delivered to the addressee;

(b)         if posted 2 Business Days (or 6 Business Days if addressed outside Australia) after the date of posting to the addressee whether delivered or not;

(c)         if sent by facsimile transmission, on the date shown on the transmission report by the machine from which the facsimile was sent which indicates that the facsimile was sent in its entirety and in legible form to the facsimile number of the addressee notified for the purposes of this clause; or

(d)         if sent by email transmission, at the time the sender’s email software records that the email was sent to the addressee in its entirety and in legible form to the email address of the addressee notified for the purposes of this clause,

but if delivery or receipt is on a day which is not a Business Day or is after 5.00 pm (addressee’s time) it is deemed to have been received at 9.00 am on the next Business Day.

23         GENERAL

23.1     This Agreement is governed by and will be construed according to the laws of New South Wales, Australia.

23.2     Nothing in this Agreement constitutes a partnership, joint venture or any similar relationship between the parties.

23.3     The Enterprise may not assign this Agreement or any of its rights or obligations pursuant to this Agreement without the prior written consent of Learnt.

23.4     These terms and conditions, the Enterprise Registration Form and the Custom Plan (if any) together comprise the agreement between the parties in relation to the Enterprise Licence and Content Licence (except as otherwise specifically agreed by the parties in writing).

23.5     If there is any inconsistency between a Custom Plan and these terms and conditions, the Custom Plan (including any special conditions) will prevail to the extent of the inconsistency (except where otherwise specifically stated in the Custom Plan).

23.6     This Agreement is deemed to be entered into on the date on which these terms and conditions, the Enterprise Registration Form and the Custom Plan (if any) have all been agreed to by the parties.

23.7     To the extent permitted by law, this Agreement:

(a)         embodies the entire understanding of the parties, and constitutes the entire terms agreed by the parties; and

(b)         supersedes any prior written or verbal or other agreements between the parties,

in respect of the grant of the Enterprise Licence and Content Licence contemplated in this Agreement.

23.8     For the avoidance of any doubt, the parties may enter into a Related Agreement. If there is any inconsistency between this Agreement and a Related agreement, the agreements will prevail to the extent of any inconsistency in the order of precedence below (except where otherwise specifically stated in this Agreement or that Related Agreement);

(a)         Strategic Partnership Agreement;

(b)         Enterprise Services Agreement;

(c)         Enterprise Licence Agreement;

(d)         Publisher Terms; and

(e)         other Related Agreement.

23.9     If any part of this Agreement is deemed to be illegal, void or unenforceable, that part of the Agreement will be severed to the extent of that illegality, voidness or unenforceability, without invalidating the remaining provisions.

23.10   Any failure or delay by either party in exercising any rights or remedy will not constitute a waiver.

23.11   Clauses 2.2, 2.6, 2.7, 9.2, 11.9, 11.12, 11.13, 12, 13.3 and 14 to 21 (inclusive) survive the termination of this Agreement.

24         INTEPRETATION

24.1     In this Agreement, unless the context otherwise requires:

(a)         headings are for convenience only and do not affect the interpretation of this Agreement;

(b)         the word person includes a natural person and anybody or entity whether incorporated or not;

(c)         a reference to a statute or regulation includes all amendments, consolidations or replacements of it, and all regulations or instruments issued under it;

(d)         where the day on or by which any thing is to be done is not a Business Day, that thing must be done on or by the next Business Day;

(e)         reference to any document, agreement or deed includes reference to that document, agreement or deed as amended, notated, supplemented, varied or replaced from time to time;

(f)          all references to dollars or $ are to Australian dollars unless otherwise stated in this Agreement;

(g)         where something is done or received after 5.00pm on any day, it will be deemed to have been done or received on the following day;

(h)         a reference to a party to a document includes that party’s personal representatives, executors, administrators, successors, substitutes (including persons taking by novation) and permitted assigns;

(i)           neither this Agreement nor any part of it is to be construed against a party on the basis that the party or its lawyers were responsible for its drafting; and

(j)           a reference to a time or date in connection with the performance of an obligation by a party is a reference to the time and date in New South Wales, Australia, even if the obligation is to be performed elsewhere.

25         DEFINITIONS

25.1     In this Agreement, unless the context otherwise requires:

Agreement means these terms and conditions, the Enterprise Registration Form and the Custom Plan (if any);

Annual Plan means a plan pursuant to which the Enterprise agrees to hold the Enterprise Licence and if applicable, the Content Licence, for a Year, for a particular number of User Connections;

Commencement Date means the date on which this Agreement is entered into as determined in accordance with clause 23.6;

Content Licence means the licence granted by Learnt to the Enterprise pursuant to clause 6;

Content Licence Fee means in respect of a Monthly Plan, Annual Plan or Custom Plan, the Total Content Fees for all Courses and Playlists on that plan, as determined pursuant to clause 10.5;

Custom Content means content created by Learnt arising from the provision of the Enterprise Services pursuant to an Enterprise Services Agreement which may comprise Raw Content and newly created content;

Custom Period means a period as specified in the Custom Plan, or such other period as the parties agree in writing;

Custom Plan means a plan which states the Enterprise Licence Fees, Content Licence Fee, Marketplace Content and other terms agreed to by the parties, and pursuant to which the Enterprise agrees to hold the Enterprise Licence and if applicable, the Content Licence, for a Custom Period, for a particular number of User Connections;

Enterprise means the enterprise specified in the Enterprise Registration Form;

Enterprise Approved Purpose means the purpose of allowing the User Connections to learn Enterprise Content and/or Marketplace Content, and/or to record such learning on the Learnt Profile of a User Connection;

Enterprise Registration Form means the form entitled “Enterprise Registration Form” available on the Website or in hard copy;

Enterprise Licence means the licences granted by Learnt to the Enterprise pursuant to clauses 2, 3, 4 and 5;

Enterprise Licence Fee means in respect of a Monthly Plan or Annual Plan, the licence fee published on the Website for that plan, or in respect of a Custom Plan, the licence fee specified in the Custom Plan, or such other licence fee as otherwise agreed by the parties in writing;

List of Common Definitions means the Learnt document entitled “List of Common Definitions” that provides definitions commonly used throughout Learnt documentation, agreements and policies (a current version of which is available on the Website as at the date of this Agreement) and is subject to change from time to time;

Live Date means the actual date on which the Enterprise Platform goes “live” as reasonably determined by Learnt. Such date may be the Commencement Date or a later date;

Monthly Plan means a plan pursuant to which the Enterprise agrees to hold an Enterprise Licence and if applicable, Content Licence, for a Month, for a particular number of User Connections;

Plan Anniversary Date means:

(a)         for a Monthly Plan, the monthly anniversary of the Plan Start Date;

(b)         for an Annual Plan, the annual anniversary of the Plan Start Date; and

(c)         for a Custom Plan, the Custom Period anniversary of the Plan Start Date;

Plan Period means:

(a)         for a Monthly Plan, one Month;

(b)         for an Annual Plan, one Year; or

(c)         for a Custom Plan, the Custom Period,

commencing on the Plan Start Date, or if the plan is renewed pursuant to clause 10.7, commencing on the Plan Anniversary Date;

Plan Start Date means the Live Date;

Raw Content means the written information, layouts, designs and artistic works provided by the Enterprise to Learnt, for the purpose of creating Custom Content, such information being in a written or electronic form;

Related Agreement means an Enterprise Services Agreement, Strategic Partnership Agreement, Publisher Terms or other agreement entered into by the parties separately and independently of this Agreement, which refers to this Agreement, the Enterprise Services, the Enterprise Licence and/or the Content Licence;

Term means the term specified in clause 15.1;

Total Content Fee has the meaning in clause 11.4; and

Works means “works” and “subject matter other than works” as defined in the Copyright Act 1968 (Cth) created, commissioned, acquired or controlled by Learnt on behalf of the Enterprise in the grant of the Enterprise Licence and/or Content Licence and if applicable, provision of the Enterprise Services.

25.2     Where a capitalised term is not defined in clause 25.1, it has the meaning as specified in the List of Common Definitions. If there is any inconsistency between clause 25.1 and the List of Common Definitions, the provisions in clause 25.1 will prevail (except as otherwise specifically stated in this Agreement).