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Licence Agreement
Non-Exclusive Licence Agreement: Accredited Resources
Contents
Scope Of This Agreement
This non-exclusive licence agreement is used to sell and distribute our licenced products for accredited resources. Unless otherwise specified, this non-exclusive licence agreement applies to all learning resources produced by Dativity Pty Ltd. Content produced by Dativity Resource Partners is not covered by this agreement.
1. Licence Grants and Restrictions
1.1 Limitation Of Content Use
Subject to the Client’s compliance with this Agreement, including payment of all Fees, Dativity grants to the Client a perpetual, royalty free, non-exclusive, non-transferable, non-assignable, licence to access and Use the Dativity Content for the Client’s own business purposes during the term of this Agreement, subject to any limitations set out in the Resource Partner’s Licence Agreement.
1.2 The Dativity Content may only be used:
(a) by the Client and Entities;
(b) by the Client Representatives;
(c) in accordance with this Agreement (as varied from time to time);
(d) in accordance with the Documentation and any written instructions from Dativity; and
(e) subject to and within the limits of a Resource Partner’s Licence Agreement.
1.3 If the Client requires to add Entities (subject to Dativity’s approval of the Entity), the Client will provide Dativity with a written request. Dativity will implement the request within a reasonable time of receiving it in accordance with this Agreement.
1.4 The Client is responsible for the Use, supervision, management and control of the Dativity Content and the Documentation.
1.5 Except as otherwise expressly permitted under this Agreement, the Client must not (and must not allow a third party, including any Entity) to:
(a) distribute, transfer, grant sub-licences to, or otherwise make available the Dativity Content or any portion thereof to third parties, unless otherwise authorised in writing by Dativity;
(b) create modifications to or derivative works of the Dativity Content, other than for the specific purpose of amending, varying or altering the Dativity Content for the specific requirements of the End Users;
(c) Use the Dativity Content for a purpose other than for the purpose for which it was purchased;
(d) reproduce the Dativity Content;
(e) attempt to modify, alter, or circumvent any licence control and protection mechanisms within the Dativity Content;
(f) demonstrate the Dativity Content to a competitor of Dativity; or
(g) remove, obscure, or alter any copyright notices or any name, trademark, service mark, or other designation within the Dativity Content (“Dativity’s Marks”).
The Client shall be responsible for all damages and liabilities incurred as a result of such actions.
2. Delivery and Acceptance
2.1 Upon the Client’s acceptance of this Agreement (by receiving this Agreement and proceeding to instruct Dativity to provide you with the Dativity Content; by making any payment of any Fees to us; or by signing this Agreement), Dativity will make the Dativity Content available to the Client for use. The Dativity Content is deemed accepted upon delivery to the Client, provided that such acceptance shall not in any way impact the warranties as provided in this Agreement.
2.2 The Client acknowledges and understands that the Dativity Content is an “off-the-shelf” and “as is” Training Package and does not represent or warrant that the Dativity Content will meet the Client’s business requirements without the Client’s modifications, adaptions, amendments or improvements to use the End User’s requirements and needs (however, Dativity can offer these additional services for an Additional Fee if requested by the Client).
3. Change Requests
3.1 If the Client requires any changes to the Dativity Content, the Client will provide Dativity with a written request.
3.2 If Dativity agrees to implement a request to change the Dativity Content, which is a matter in Dativity’s sole discretion, Dativity will advise the Client of Dativity’s proposal for implementation including the Additional Charges and proposed timeframe for implementation.
4. Audit Rectification
While Dativity takes every attempt to keep all references in the Content up to date, the Client accepts that certain references may become out of date without Dativity
being aware of it. If this occurs, the Licensee is encouraged to contact the Dativity for updates. Once notified, the Dativity makes no assurances concerning how quickly the Content will be updated.
4.1 In the event of an Audit by ASQA, Dativity will ensure and rectification work is carried out at no charge to the client in accordance with clauses 4.1.1 and 4.1.2 of this agreement.
4.1.1 In order to make rectifications, the Client shall ensure;
(a). No changes have been made to the resources other than changes to the logo and RTO details.
(b). The resources provided by us have been used in full and you can demonstrate that the auditor was provided with the whole set of resources during the audit.
(c). The resources have been used for their intended purpose, and the Training and Assessment Strategy presented at audit by the client clearly and appropriately describes the tools and their intended purpose.
(d) Requested amendments are within the scope of the training materials only and not other requirements of the client and its agents and consultants including but not limited to validation, moderation, training and assessment strategies and continuous improvement; and
4.1.2 In order to request us to make changes, Dativity Pty Ltd requires the following:
Email us at hello@dativity.io within 2 working days of the issue date of the audit rectification notice with a minimum of 21 working days notice for completion.
You must include the following in your email:
(a). A full copy of the audit report
(b). A copy of the relevant Training and Assessment Strategy presented at audit so we can ensure the tools were described and used for their purpose
(c). A copy of the resources provided to the auditor
5. Client’s Obligations
5.1 The Client will comply with and will be responsible for each Representative and End User’s compliance with the terms and conditions of this Agreement. The Client shall be responsible for all loss, damage and liabilities incurred by Dativity as a result of failure to comply with this clause.
5.2 The Client may print and make such number of copies of the Dativity Content as it reasonably requires to Use the Dativity Content in accordance with this Agreement. All copies are the property of Dativity.
6. Services
6.1 Without limiting anything else in this Agreement, in order for Dativity to perform any Services successfully and in a timely manner, Dativity requires the Client’s timely co-operation, including:
(a) providing reasonable access to the Client personnel, materials, information and facilities to assist Dativity with its Services;
(b) arranging access to third parties where applicable; and
(c) making decisions promptly to facilitate the performance of the Services.
6.2 Unless expressly agreed to be fixed, any timeframes for the provision of Services (including without limitation any specified in the Quotation) are estimates and are not contractually binding. Estimates of time for completing the Services are given on the assumption (among other things) that Dativity receives the co-operation and commitment from the Client as specified in clause 6.1.
6.3 In the course of providing the Services, Dativity will rely on information supplied by the Client or others. Dativity is not obliged to verify the accuracy and completeness of that information. If any information provided is materially incorrect, Additional Charges may apply.
6.4 Dativity is entitled to sub-contract, transfer, assign or novate any of the Services at its sole discretion.
7. Fees and Payment
7.1 The Client agrees to pay the amount specified in the Proposal (as varied from time to time in accordance with these Terms and Conditions).
7.2 Without limitation, Additional Charges may apply:
(a) to any upgrade in the Quotation;
(b) for any work required to be undertaken by Dativity to implement a request made under clause 2.3: and
(c) to reflect the implementation of a New Release, additional modules, customisations, enhancements or features (if any).
7.3 Subject to clause 7.4, the Client must pay all invoices (without any set off, deduction or withholding whatsoever) within 14 days of the date of the invoice. Dativity may charge interest on any amount not paid by the due date at a rate equal to two percent above the Corporate Overdraft Reference Rate of the Commonwealth Bank of Australia from time to time applicable for monthly charging cycles.
7.4 The Client must notify Dativity of any dispute in relation to an invoice within 14 days of the date of the invoice and the reasons for the dispute or the full amount becomes due and payable in accordance with clause 7.3. If the Client disputes in good faith any amount on an invoice, the Client must pay the portion of the invoice not in dispute within 14 days of the date of the invoice. If it is agreed that some or all of the disputed amount was properly payable, then the Client must immediately pay that amount together with interest in accordance with clause 7.3.
8. Goods and Services Tax
8.1 In this clause, terms used have the meaning given to them by the GST Law as defined in Section 195-1 of the A New Tax System (Goods and Services Tay) Act 1999 (the “GST Act”). If a party to this Agreement (the “Supplier”) makes a supply under or in connection with this Agreement and is liable by law to pay GST on that supply, the consideration otherwise payable by the recipient of the supply will be increased by an amount equal to the GST paid or payable by the Supplier.
9. Confidentiality
9.1 Except as provided in this clause, a party must not, without the prior written approval of the other party, disclose the other party’s Confidential Information.
9.2 A party is not in breach of clause 9.1:
(a) in circumstances where it is legally compelled to disclose the other party’s Confidential Information; or
(b) if it discloses Confidential Information (other than of a technical nature) to its related companies, solicitors, auditors, insurers and accountants or in the case of Dativity, to third parties solely for the purposes of performing this Agreement.
9.3 Each party must take all reasonable steps to ensure that its employees, agents and sub-contractors do not make public or disclose the other party’s Confidential Information.
10. Limitation of Liability
10.1 Subject to clauses 10.2, 10.4 and 15.5 and otherwise to the extent permitted by law:
(a) Dativity is not liable to the Client and the Client has no right of set off, for:
(i) any loss of data, goodwill, interest, revenues, profits, contracts, RTO registration, sanctions, removal of scope, remedial action, government or any other funding or any inaccuracy of data; or
(ii) any indirect, special, incidental, consequential, exemplary, punitive, or aggravated damages or loss; or
(iii) any internal costs and expenses (whether director indirect) howsoever incurred, arising from the negligence of, or any breach of this Agreement by, Dativity or its Representatives even if Dativity has been advised of the possibility that such damages may occur; and
(b) Dativity is not liable for loss or damage arising from third party products or services, including those that touch or concern a Resource Partner’s Intellectual Property.
10.2 Nothing in this Agreement limits Dativity’s liability to an individual for death or personal injury caused by a negligent or wilful act or omission of Dativity or its Representatives.
10.3 No warranty, condition or term (“term”) applies to this Agreement unless it is set out in this Agreement or is implied by law and cannot be excluded, modified or restricted. Without limiting clause 10.4:
(a) the Dativity Content is supplied on an “as is” basis; and
(b) the Dativity Content is not liable to the Client or its Representatives where the Dativity Content does not comply with the Australian Industry Standards (however, where the Client discovers the Dativity Content does not comply with the Australian Industry Standards, Dativity will use reasonable endeavours to rectify any deficiencies or non-compliance at its earliest availability);
(c) the Dativity Content is suitable for use in Australia only. If the Client intends to use the Dativity Content in, or in relation to, any other jurisdiction it does so at its own risk.
10.4 If:
(a) any term is implied into this Agreement by law, and the law prohibits the exclusion, restriction or modification of that term or liability under it, then that term shall be deemed to be included in this Agreement;
(b) a statutory guarantee applies to goods or services supplied under this Agreement;
then, to the extent permitted by law, Dativity’s liability for breach of that term or guarantee is limited to (at Dativity’s option):
(c) in relation to services, re-supplying the services or paying for them to be re-supplied; and
(d) in relation to goods, re-supplying them, or paying for having them re-supplied.
10.5 The Client will at all times indemnify and hold harmless Dativity and its Representatives from and against any loss, costs (including reasonable legal costs and expenses) or liability incurred or suffered by Dativity or its Representatives arising from any proceedings against Dativity or its Representatives where such loss, costs or liability was caused by:
(a) a breach by the Client or an Entity of its obligations under this Agreement (or any other applicable licence terms);
(b) any wilful, unlawful or negligent act or omission of the Client, an Entity or their Representatives; or
(c) a claim by a third party alleging an infringement of that third party’s Intellectual Property Rights if such infringement relates to an actor omission of the Client, a User, an Entity or their Representatives.
11. Term and Termination
11.1 Term
(a) This Agreement is for:
(i) the term and existence of the Resource as determined by the Australian Industry Standards and automatically terminates upon the cancellation, termination or variation of the Australian Industry Standards with respect to a Resource;
(ii) the term of the Resource Partner’s relationship with Dativity, whichever terminates earlier.
(b) For the avoidance of doubt, a New Release does not include changes or modifications to Training Packages or to Training Packages or Units of Competencies that have been superseded or replaced in the Australian Industry Standards.
11.2 Immediate Termination
(a) Either party may terminate this Agreement effective upon written notice if the other party has an Event of Insolvency.
(b) Dativity may terminate this Agreement or any Quotation effective upon written notice if:
(i) Dativity is required to do so by law; or
(ii) the provision of the Dativity Content to you by Dativity is, in the opinion of Dativity, no longer commercially viable or has become impractical or unfeasible; or
(iii) a Resource Partner has terminated its relationship with Dativity.
11.3 Termination with notice
(a) Termination by the Client
(i) The Client may terminate this Agreement for any reason. Any Fees which are paid in advance are non-refundable.
(ii) The Client may terminate this Agreement:
(i) if Dativity breaches this Agreement and fails (or is unable) to cure the breach following 30 days’ written notice; or
(ii) for any reason by providing Dativity with 60 days’ written notice.
(b) Termination/Suspension by Dativity
Dativity may, at its option, suspend all Licences for the Dativity Content and Services provided to the Client or terminate this Agreement:
(i) if the Client fails to pay a Fee that remains overdue after first providing the Client with ten (10) days’ prior written notice. Any suspension by Dativity under the preceding sentence will not relieve the Client of its payment obligations hereunder;
(ii) if the Client breaches this Agreement and fails (or is unable) to cure the breach following 30 days’ written notice; or
(iii) for any reason by providing the Client with 60 days’ written notice.
11.4 On the termination or expiry of this Agreement:
(a) the Client and any Entities must no longer use the Dativity Content and the Documentation;
(b) the Client must pay any outstanding Fees to Dativity;
(c) other than as provided in clause 11.4, Dativity may retain any moneys paid;
(d) Dativity may charge a reasonable sum for work performed up to termination in respect of which work no sum has previously been invoiced or paid;
(e) Dativity will be released from any further obligations under this Agreement;
(f) either party may pursue any additional or alternative remedies provided by this Agreement or law;
(g) each party must return any property (including Confidential Information) of the other; and
(h) all copies of the Dativity Content and any Documentation must be returned to Dativity and permanently erased from all equipment and storage devices used by the Client and the Entities, regardless of whether such equipment and storage devices are owned by the Client, the Entities or a third party.
11.5 Any clauses of this Agreement which are capable of having effect after the expiration or termination of this Agreement will continue to remain in full force and effect.
12. Personal Information
12.1 Disclosure of personal information to Dativity is subject to the Privacy Act 1988 (“Privacy Act”).
13. Intellectual Property
13.1 Any Intellectual Property Rights:
(a) in the Dativity Content;
(b) in the Documentation;
(c) in any changes, modifications, developments or enhancements made to the Dativity Content or the Documentation by Dativity or anyone else (including Client specific modifications);
(d) arising from Dativity’s provision of the Services; and
(e) on the Website,
(f) are owned and are the sole property of Dativity or its licensors.
13.2 Notwithstanding anything to the contrary in this Agreement, Dativity is not responsible or liable for any infringement of a third party’s Intellectual Property Rights if the infringement would not otherwise exist except for:
(a) modifications to the Dativity Content in compliance with the Client’s specifications or requirements;
(b) any breach of this Agreement by the Client or an Entity, or any unauthorised use, access or modification to the Dativity Content by the Client, an Entity or a third party.
14. Dispute Resolution
14.1 Negotiation
Except as is expressly provided for in this Agreement, if there is a dispute or difference between the parties arising out of or in connection with this Agreement (Dispute), then within five Business Days of a party notifying the other party in writing of the Dispute, a senior representative from each party must meet and use all reasonable endeavours acting in good faith to resolve the Dispute by joint discussions.
15. General
15.1 Assignment
(a) The terms of this Agreement shall be binding on the parties and their successors.
(b) Dativity or the Client may assign its rights and obligations under this Agreement:
(i) to a third party if any part of the business of Dativity or the Client is sold or transferred to that third party; and/or
(ii) provided that Dativity or the Client (as applicable) can demonstrate that the assignee is able to perform its obligations under this Agreement.
15.2 Further assurances
Each party must do anything necessary or desirable (including executing agreements and documents) to give full effect to this Agreement and the transactions contemplated by it.
15.3 Entire Agreement
The Agreement and any variations to it embody the entire understanding and agreement between the parties as to its subject matter. All previous negotiations, understandings, representations or warranties (“other understandings’) in relation to the subject matter of this Agreement are superseded by this Agreement.
15.4 Amendments
This Agreement may only be modified or supplemented by a written document executed by an authorised representative of each party.
15.5 Compliance with the Australian Consumer Law
If the Australian Consumer Law in Schedule 2 to the Competition and Consumer Act 2010 (Cth) applies to any supply of goods or services under this Agreement, nothing in this Agreement excludes, restricts or modifies a guarantee, right, liability or remedy to the extent that to do so would render a term void or be a breach of the Competition and Consumer Act 2010.
15.6 Waiver
A failure to exercise or a delay in exercising any right, power or remedy under this Agreement does not operate as a waiver. A single or partial exercise or waiver of the exercise of any right, power or remedy does not preclude any other or further exercise of that or any other right, power or remedy. A waiver is not valid or binding on the Party granting that waiver unless made in writing.
15.7 Severability
Any provision in this Agreement that is invalid or unenforceable in any jurisdiction is to be read down for the purpose of that jurisdiction, if possible, so as to be valid and enforceable, and otherwise shall be severed to the extent of the invalidity or unenforceability, without affecting the remaining provisions of this Agreement.
15.8 No Clientship or Agency
Nothing contained or implied in this Agreement shall be construed to place the Parties in the relationship of Clients, joint venturers, principal and agent, or employer and employee.
15.9 Governing law & Jurisdiction
(a) This Agreement is governed by the laws of New South Wales and the venue of any dispute shall be Newcastle, New South Wales.
15.10 Limitation of action
Subject to clause 15.6 and to the maximum extent permitted by law, other than in relation to a claim for breach of Dativity’s Intellectual Property Rights, no claim can be made under this Agreement more than two (2) years after;
(a) the discovery of the circumstances giving rise to the claim; or
(b) the effective date of termination of this Agreement.
15.11 Order of Priority
Where there is any conflict between documents comprising this Agreement, they will prevail in the following order (subject to any variations agreed in accordance with clause 15.5):
(a) the Resource Partner’s Licence Agreement;
(b) the Proposal; and
(c) these Terms and Conditions.
15.12 Non-exclusivity
Nothing in this Agreement will prevent or restrict Dativity from providing services to customers other than the Client. Force Majeure
(a) Each party will be excused from any delay or failure in performance hereunder, other than the payment of money, caused by reason of a Force Majeure Event.
(b) The obligations and rights of the party so excused will be extended on a day-to-day basis for the period of time equal to that of the underlying cause of the delay.
16. Definitions
The following definitions apply unless the context requires otherwise.
Client means the partner that is on a Licence to Use the Dativity Content.
Additional Charge means a charge in accordance with Dativity’s standard rates from time to time, or as otherwise reasonably determined by Dativity or agreed with the Client.
Agreement means these Terms and Conditions.
Australian Industry Standards means Australian Industry Standards Limited.
Australian Qualifications Framework means the standards for educational qualifications administered by the Australian Government’s Department of Industry.
Business Day means a day on which banks are generally open for business in New South Wales other than a Saturday, Sunday or public holiday.
Business Hours means 9.00am to 5.00pm Sydney time on Business Days.
Commencement Date means the commencement date of this Agreement specified in the Quotation, and where it is not specified in the Quotation or no Quotation is provided, then it is the date that the Dativity Content is provided to you.
Confidential Information means the confidential information of a party and includes information relating to, in the case of Dativity, this Agreement, the Dativity Content, our pricing and payment terms, and the Documentation.
Dativity, we, us and our means Dativity Pty Ltd (ACN 657 842 263).
Dativity Content means the Resources for Training Packages drafted, brought into existence and prepared by Dativity (or its Resource Partner) to enable Clients to teach, present and train End Users in accordance with the Australian Industry Standards as required by the Australian Qualifications Framework and it includes but is not limited to any and all improvements, developments, modifications, derivatives and variations of such content from time to time and where the context permits, it includes any New Release and the Documentation.
Documentation means the authorised user guides, manuals, videos and other electronic resources that are delivered or made available by Dativity to the Client for use with the Dativity Content.
End User means a student, trainer, teacher or Representative of the Client.
Entities means the legal entity or entities (such as a company, trust, or joint venture) identified in the Quotation or approved in writing by Dativity.
Event of Insolvency means and act of insolvency as defined in the Corporations Act 2001 (Cth).
Any of the above terms defined in the Corporations Act 2001, have the meaning assigned in that Act.
Fees means the fees in any Quotation, and/or any Additional Charges, fees, charges, expenses or payments specified in this Agreement.
Force Majeure means a circumstance beyond the reasonable control of a party and which results in that party being unable to observe or perform an obligation on time under this Agreement (other than an obligation to make a payment).
Intellectual Property Rights means copyright, trademark, design, patent, semiconductor, circuit layout rights, the right to keep confidential information confidential and any other rights in the nature of intellectual property rights.
Licence means the licence to the Dativity Content set out in clause 2 of this Agreement.
New Release means a new release of the Dativity Content providing for a change in a Resource.
Proposal means the quotation provided by Dativity to the Client from time to time, either verbally, by email, as displayed on the Website or otherwise as amended and varied from time to time.
Representative means any officer, employee, agent, consultant, contractor or other representative.
Resources means the specification of knowledge and skill, and the application of that knowledge and skill, to the standard of performance expected within Training Packages.
Resource Partner(s) means a partner of Dativity who has granted Dativity a licence to sell, modify, amend, vary, transpose or otherwise commercialise its Intellectual Property Rights in any Resources.
Resource Partner’s Licence Agreement means the licence agreement that is applicable to the Resource Partner’s Intellectual Property Rights that form part of the Dativity Content.
Services means any services performed by Dativity pursuant to this Agreement and any other services referred to in the Quotation.
Terms and Conditions means the terms and conditions set out in clauses 1 to 18 of this document.
Training Packages means the training packages that reflect the qualifications required by the Australian Industry Standards and aligned with the Australian Qualifications Framework.
Use means to use the Dativity Content to for the specific purpose of training the End Users on the Resources within the Training Packages.
Website means the website at www.dativity.io.
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