Online subscription terms and conditions

1. Application of this agreement

This agreement specifies the terms and conditions under which an individual (a Subscriber) will be permitted by SAFETRAC Pty Limited ABN 48 098 914 848 of Level 10, 2 Riverside Quay, Southbank, Victoria 3006 (SAFETRAC) to access and use a particular Course Module, and the results of that individual’s completion of that Course Module, through the Platform.

2. Grant of access to Course Module
   1. A Subscriber may purchase a right to access and use a particular Course Module by completing and submitting an Application Form, and by paying, in the manner specified in this agreement, the Subscription Fee for that Course Module.
   2. SAFETRAC will, on submission of the completed Application Form and payment of the applicable Subscription Fee, provide the Subscriber with a user name and password to access the applicable Course Module.

3. Term

This agreement commences on the date on which the Subscriber signifies its acceptance of these terms and conditions, and continues until the expiry of the period specified in clause 4, unless otherwise terminated earlier.

4. Licence
   1. Subject to paragraph 4(b), SAFETRAC grants to the Subscriber a non-exclusive, non-transferable, revocable licence to:
      1. access and use that Course Modules, solely in conjunction with the Platform; and
      2. access Course Test Data through the Platform.
   2. The licence to access and use the relevant Course Module commences on SAFETRAC’s receipt, in accordance with these General Terms, of the Subscription Fee for the Course Module, and will continue for one year from that date (Licence Term).

5. Fees and payment
   1. The amount of the Subscription Fee payable for each Course Module, as specified at our website, is:
      1. specified, and payable, in Australian dollars; and
      2. inclusive of all taxes, charges, levies, duties or other government imposts imposed under the laws of the Commonwealth and each State and Territory of Australia, save for Commonwealth goods and services tax.

Subject to paragraph 15(b), fees paid by the Subscriber are non-refundable.

1. 1. Payment of fees may be effected by any of the methods of payment prescribed at our website.
   2. Notwithstanding any other provision of this agreement or statement on the Website, payment of a given amount will not be deemed to have occurred unless and until SAFETRAC receives the relevant amount, in cleared funds.
   3. Notwithstanding paragraph 5(a), SAFETRAC reserves the right to charge, impose or pass onto the Subscriber, any surcharge, administration fee or other amount payable by it as a consequence of agreeing to accept a particular method of payment. To the extent practicable the nature and amount of such surcharge, administration fee or other amount will be specified at our website.
   4. The Subscriber agrees to reimburse SAFETRAC for any dishonour fees or like amounts incurred by SAFETRAC as a consequence of a payment made by the Subscriber being refused or dishonoured by its bank, financial institution or credit provider.

6. Subscriptions not transferrable
   1. The rights to access and use the Course Module and Course Test Data are not transferrable.
   2. The user name and password issued to the Subscriber is personal to that Subscriber, and the Subscriber must ensure that such user name and/or password is not distributed, communicated, disclosed or transferred to any other person.
   3. The Subscriber accepts all responsibility and liability for any unauthorised use of any username and password issued to it.
   4. The Subscriber must not on-supply, or provide access to, the Course Module, or any content forming part of such Course Module, to any person(s).

7. Access and usage restrictions

The Subscriber must not:

1. 1. reverse engineer, disassemble, or decompile any software forming part of the Platform, unless permitted to do so by law, and then only strictly in accordance with the provisions or terms under which that right is given by such law;
   2. copy or download, in a systematic manner, any content, graphics, video, text or animation from the Platform or Course Module, or communicate or otherwise distribute such systematically-obtained content, graphics, video, text or animation;
   3. directly or indirectly introduce any virus, worm, trojan or other malicious code into the Platform, or in any other manner whatsoever corrupt, degrade or disrupt the operation of the Platform;
   4. adapt, modify, or create any derivative work from, the Course Module, other than as necessary to complete that Course Module;
   5. sell, translate, network, publish, commercialise, rent, lease, assign, transfer, loan, or otherwise distribute all or part of the Platform or the Course Module, or any adaptation, modification or derivative of all or part of the Platform or the Course Module;
   6. use the Platform or Course Module for any unlawful purpose;
   7. do anything inconsistent with the terms of this agreement; or
   8. remove, obscure or interfere with any copyright, acknowledgment, attribution, trade mark, warning, disclaimer statement, rights management information or serial numbers affixed to, incorporated in or otherwise applied in connection with the Platform or the Course Module.

8. No guaranteed access

The Subscriber acknowledges and agrees that while SAFETRAC will make reasonable efforts to ensure the Platform’s availability, continuity, reliability, accuracy, currency and security, SAFETRAC makes no representations, warranties or guarantees in relation to the Platform or any ISP Services. SAFETRAC will not be liable if the Platform or ISP Services are unavailable for any reason, including directly or indirectly as a result of:

1. telecommunications unavailability, interruption, delay, bottleneck, failure or fault;
2. negligent, malicious or wilful acts or omissions of third parties (including SAFETRAC’s third party service providers);
3. maintenance or repairs carried out by SAFETRAC or any third party service provider in respect of any of the systems used in connection with the provision of the Platform or the ISP Services;
4. any events beyond SAFETRAC’s control; or
5. services provided by third parties ceasing or becoming unavailable.

9. Ownership of Intellectual Property Rights

The Subscriber agrees that all rights, title and interest (including all Intellectual Property Rights) in the Platform and the Course Module remain vested in SAFETRAC. The only rights granted to the Subscriber by SAFETRAC in respect of the Platform and the Course Module (and the Intellectual Property Rights subsisting in each of them) are those granted under this agreement, and such rights are subject to the terms of this agreement.

10. Confidential Information

Each party must:

1. use its best endeavours to ensure that the Confidential Information is kept secret, and is not disclosed to any third party;
2. not use, reproduce or communicate any Confidential Information, other than for the purposes of this agreement, unless the other party gives its express written consent for it to do so; and
3. procure that its officers, employees, agents and subcontractors do such things, or refrain from doing such things (as the case may be), so as to ensure that it complies with its obligations under paragraphs (a) and (b).

A party will not be in breach of its obligations under paragraphs (a) to (c) above if it discloses the other party’s Confidential Information pursuant to a statutory requirement, order of a court or legal direction or requirement of a person acting with statutory authority. However, if a party is required to disclose Confidential Information under this paragraph it must, before disclosing that information, notify the other party in writing and permit the other party the opportunity to limit the scope, or seek the withdrawal, of such required disclosure. The other party must provide reasonable co-operation in this regard.

11. Privacy

SAFETRAC agrees that it will collect, store, distribute and communicate ‘personal information’ (as that term is defined in the Privacy Act 1988 (Cth)), which is provided to it by the Subscriber, or is otherwise collected by SAFETRAC as a result of the access to, and use of, the Course Module and/or the Platform, in accordance with the Privacy Policy.

12. Goods and services tax

Words or expressions used in this clause 12 which are defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) have the same meaning in this clause.

Any consideration or amount to be paid or provided for a supply made under or in connection with this agreement, unless specifically described as GST inclusive, does not include GST payable on that supply.

If a party (Supplier) makes a supply under or in connection with this agreement on which GST is imposed (not being a supply the consideration for which is specified as GST inclusive):

1. the consideration payable or to be provided for that supply but for this clause (GST exclusive consideration) is increased by, and the recipient of the supply (Recipient) must also pay to the Supplier, an amount equal to the GST payable by the Provider on that supply; and
2. the amount by which the GST exclusive consideration is increased must be paid to the Supplier by the Recipient without set off, deduction or requirement for demand, at the same time as the GST exclusive consideration is payable or to be provided.

13. Disclaimer

The Subscriber acknowledges and agrees that the Course Module:

1. is made available by SAFETRAC for instructional purposes only; and
2. do not constitute, and are not a substitute for, legal advice.

14. Liability and Indemnity

1. To the extent that the Subscriber acquires goods or services from SAFETRAC as a consumer within the meaning of the Australian Consumer Law, the Subscriber may have certain rights and remedies (including, without limitation, consumer guarantee rights) that cannot be excluded, restricted or modified by agreement.
2. Nothing in this clause 14 operates to exclude, restrict or modify the application of any implied condition or warranty, provision, the exercise of any right or remedy, or the imposition of any liability under the Australian Consumer Law or any other statute where to do so would:
   1. contravene that statute; or
   2. cause any term of this agreement to be void, (Non-excludable Obligation).

14. 3. Except in relation to Non-excludable Obligations, all conditions, warranties, guarantees, rights, remedies, liabilities or other terms that may be implied by custom, under the general law or by statute are expressly excluded under this agreement.
    4. Except in relation to Non-excludable Obligations, SAFETRAC’s liability to the Subscriber arising directly or indirectly under or in connection with this agreement or the performance or non-performance of this agreement and whether arising under any indemnity, statute, in tort (for negligence or otherwise), or on any other basis in law or equity is limited as follows:
       1. SAFETRAC excludes all liability for loss of revenue, loss of goodwill, loss of customers, loss of capital, downtime costs, loss of profit, loss of or damage to reputation, loss under or in relation to any other contract, loss of data, loss of use of data, loss of anticipated savings or benefits, or any indirect, consequential or special loss, damage, cost or expense or other claims for consequential compensation, incurred by or awarded against the Subscriber under or in any way connected with this agreement; and
       2. SAFETRAC’s total aggregate liability under or in any way connected with this agreement is limited to the amount of the Subscription Fee paid by the Subscriber to SAFETRAC under this agreement.
    5. In relation to Non-excludable Obligations (other than a guarantee as to title, encumbrances or quiet possession conferred by the Australian Consumer Law), except for goods or services of a kind ordinarily acquired for personal, domestic or household use or consumption (in respect of which SAFETRAC’s liability is not limited under this agreement), SAFETRAC’s liability to the Subscriber for a failure to comply with any Non excludable Obligation is limited to:
       1. in the case of services, the cost of supplying the services again or payment of the cost of having the services supplied again; and
       2. in the case of goods, the cost of replacing the goods, supplying equivalent goods or having the goods repaired, or payment of the cost of replacing the goods, supplying equivalent goods or having the goods repaired.

15. Suspension, cancellation and termination
    1. Without limiting any of its other rights or remedies under this agreement, SAFETRAC may immediately suspend the Subscriber’s access to the Platform and/or the Course Module if the Subscriber fails to pay any amounts that are due, but unpaid. Such suspension may continue until such time as payment of such amounts is effected in accordance with this agreement.
    2. Either party may terminate this agreement immediately by notice in writing if the other party:
       1. breaches any term of this agreement that is not capable of remedy; or
       2. breaches any term of this agreement that is capable of remedy and fails to rectify that breach within 14 days of receiving a notice from the other party requiring them to do so.
    3. The subscriber acknowledges that in the event they terminate this license in accordance with clause 15(b) no refund will be provided by Safetrac.

16. Effect of termination

1. 1. The termination of this agreement under clause 15(b) will automatically result in the termination of the licences to access and use the Platform and the Course Module.
   2. On the expiry or termination of this agreement:
      1. the Subscriber must cease using all Course Module immediately, and procure that its Authorised Users also do so;
      2. to the extent that the Subscriber or its Authorised Users have in their possession or control copies of any Course Module, whether in tangible or electronic form, and whether stored on a disk or installed on its own platform or system, the Subscriber must (at SAFETRAC’s direction) either return to SAFETRAC, or destroy, each such copy of those Course Module; and
      3. the Subscriber must within 30 days send to SAFETRAC or otherwise dispose of in accordance with SAFETRAC’s directions, all Confidential Information and all other documentation and written correspondence relating to the Platform and Course Module then in the Subscriber’s possession or control (or that of its Authorised Users).
   3. The termination of this agreement is not a party’s sole remedy, and will not prejudice, or amount to a release of, any of that party’s rights to claim compensation or other remedies in respect of the other party’s acts, omissions, breach, negligence or wilful misconduct occurring prior to such termination.
   4. (d) The parties agree that the rights and obligations of the respective parties under clauses 9, 10, 13, 14, and this clause 16 will survive the expiry or termination of this agreement for any reason.

2. General

1. 1. Neither party is liable for any failure to perform or delay in performing its obligations under this agreement if that failure or delay is due to anything beyond that party’s control. If that failure or delay exceeds 60 days, either party may terminate this agreement with immediate effect by giving notice to the other party. This clause does not apply to any obligation to pay money.
   2. This agreement will be governed by the laws of the State of Victoria, Australia, and the parties submit irrevocably and unconditionally to the exclusive jurisdiction of the courts of that State.
   3. All formal notices and correspondence, including invoices and statements issued by SAFETRAC, may be given by e-mail, addressed to:
      1. in the case of the Subscriber, the e-mail address specified in the Subscriber’s Application Form (as updated from time to time by notice); or
      2. in the case of SAFETRAC, to the e-mail address specified at our website.

Provided that a notice or correspondence is addressed correctly, it will be deemed to have been received by the addressee when the e-mail containing the notice enters the e-mail system or service of the recipient.

1. 4. The Subscriber may not assign his or her rights under this agreement, or attempt or purport to do so, without SAFETRAC’s consent.
   5. The terms of this agreement constitute the entire agreement between the parties with respect to their subject matter.
   6. An amendment, deletion or addition to this agreement will not be valid or binding on the parties unless it is in writing and signed by each party.

2. Defined terms

In this document, unless the contrary intention appears:

Application Form means the application form, located at our website.

Australian Consumer Law means the Australian Consumer Law set out in Schedule 2 to the Competition and Consumer Act 2010 (Cth) as amended or replaced from time to time.

Confidential Information of a party (Disclosing Party) means information that is by its nature confidential, is designated by the Disclosing Party as confidential or the receiving party knows, or ought to know, is confidential, and in the case of SAFETRAC includes:

1. information relating to the development, layout, programming and operation of the Platform and the Course Module; and
2. and any other information with respect to SAFETRAC’s business, finances, trade secrets or know-how that may be communicated to the Subscriber (whether by SAFETRAC or anyone else) during the term of this agreement,

but excludes any information that:

1. is in, or subsequently enters, the public domain other than through a breach of this agreement by the Subscriber;
2. is developed independently by the Subscriber; or
3. is acquired by the Subscriber from a third party who is not subject to a duty of confidentiality in respect of such information.

Course Module means a education or training course, including content, associated tools and tests, designed to test whether a participant has understood, and attained the minimum requisite knowledge of, the content and subject matter of the relevant course, which may be undertaken and completed online via access to the Platform, which is offered by SAFETRAC from time to time.

Course Test Data means the data generated by and stored by the Platform relating to the access and use of the Course Module by the Subscriber and the results of the tests undertaken by the Subscriber in respect of that Course Module.

Intellectual Property Rights means all intellectual property rights, including the following rights:

1. patents, copyright, rights in circuit layouts, registered and unregistered designs, moral rights, registered and unregistered trade marks, service marks, trade names and any right to have confidential information kept confidential; and
2. any application or right to apply for registration of any of the rights referred to in paragraph (a).

Platform means the software for SAFETRAC’s compliance management system hosted by or on behalf of SAFETRAC, which may be accessed by the Subscriber via the internet.

Privacy Policy means SAFETRAC’s policy with respect to the collection, communication, distribution and storage of personal information, as amended from time to time by SAFETRAC.

Subscription Fees in respect of the Course Module, means the fee, specified at our website payable by the Subscriber for the right to access and use the Course Module and access Course Test Data.

Website means www.safetrac.com.au.

2. Interpretation

In this agreement, unless otherwise expressly stated:

1. headings are for ease of reference only and do not affect the meaning of this agreement;
2. the singular includes the plural and vice versa;
3. other grammatical forms of defined words or expressions have corresponding meanings;
4. a reference to a document or agreement, including this agreement, includes a reference to that document or agreement as novated, altered or replaced from time to time;
5. a reference to any thing includes the whole or part of that thing, and a reference to a group of things or persons includes each thing or person in that group;
6. rules of construction will not apply to the disadvantage of a party merely because that party was responsible for the preparation of this agreement or any part of it; and
7. if a day on which, or by which, an obligation under this agreement must be performed or fulfilled, or an event must occur, is not a business day, that obligation must be performed or fulfilled, or that event must occur, on or by the next business day.