ATTENTION ALL USERS:
THIS IS A LEGALLY BINDING AGREEMENT
- Our liability for any kind or loss or damage caused by using the Platform is significantly restricted (see clause 11).
- You give us a licence to use any content uploaded to the Platform (see clause 10).
- Your fee for using the Platform may increase depending on whether you need additional functionality or support and you may not always receive prior notice of increases (see Schedule 1).
- We do not guarantee that any data exported from the Platform will be accurate or meet any applicable reporting standards, because this depends entirely on the data input to the Platform, and there may also be technical problems that affect the accuracy of any such data;
- If you are the Subscriber, you are responsible for the conduct of all your Representatives on the Platform (see clause 3.7).
“Charges” for a Subscriber means all fees and charges payable by the particular Subscriber to DNA Progression in accordance with Schedule 1, including (where applicable for certain Subscribers) the SLP Add-on Charges defined in Annexure A.
“Commencement Date” for a Subscriber means the date the Subscriber pays the Initial Access Fee (as defined in Schedule 1).
“Content” includes (without limitation) text, word documents, photographs, logos, names, designs, information, Personal Information, data, drawings, links, video recordings and audio recordings.
“Insolvent” means unable to pay debts as and when they fall due (in the reasonable opinion of DNA Progression) and for a company, includes the situation where any step has been taken towards the winding up or administration of the company or where any assignment has been made for the benefit of creditors of the company.
“Intellectual Property” means all intellectual property and quasi-intellectual property rights (past, present and future) conferred by law (whether registered or unregistered) including without limitation business names, trade marks, patents, designs, trade secrets, computer programs, databases, inventions, copyright, circuit layout, moral rights and all proprietary rights and all other intellectual property defined in Article 2 of the Convention establishing the World Intellectual Property Organisation (July 1967).
“Platform” means the Weworkbook web-based software platform and includes where applicable to certain Subscibers, the Student Learning Portal.
“Platform Content” means all Content on the Platform which is not Subscriber Content.
“Privacy Act” means the Privacy Act 1988 (Cth) as amended from time to time.
“Registered Training Organisation” means a training provider registered with the Australian Skills Quality Authority or a state regulator to deliver vocational education and training services.
“SLP Add-on Charges” means the fees set by DNA Progressions for access to the Student Learning Portal (defined in Annexure A) as updated from time to time. At the time of writing these SLP Terms, the SLP Charges are:
- A one-off fee of $2,000.00 plus GST for construction of a Subscriber-specific Student Learning Portal interface, with the Subscriber’s branding and image; and
- A one-off fee of $1,000.00 plus GST per block of 100 Student Accounts.
“Student Learning Portal” means the student learning portal defined at the start of Annexure A.
“Subscriber” means an entity, usually a Registered Training Organisation, which is entitled to, and does, register an account and receive access to the Services upon payment of the applicable Charges and “Subscriber Account” is an account registered by a Subscriber.
“Subscriber Content” means any Content submitted or uploaded to the Platform by a Subscriber or their Representatives.
“Subscriber Representative” means any employee, contractor, agent, affiliate, client or other authorised representative of a Subscriber, including a trainer or teacher who works for the Subscriber.
“Third Party” means an individual who is identified or identifiable by Third Party Personal Information.
“Third Party Personal Information”, means Personal Information supplied by a User that relates to an individual who is not that User.
2. Description of Platform
- The Platform is a customer relations management, course scheduling and reporting system designed for use by Registered Training Organisations.
- In exchange for payment of the Charges, DNA Progression provides to the Subscriber the following services and functionality on the Platform (each Subscriber’s level of access will depend on the Charges paid by the Subscriber):
- The means for enquiries from prospective students and other enquirers received by a Subscriber on their website to be directed straight to Weworkbook, which will then respond with an email sent to the enquirer containing details about the course provided by the Subscriber, also known as an ‘InfoPAK’;
- Storage of data, on behalf of Subscribers, relating to individual Students (including contact details, dates of birth, disability status and prior learning), courses and units offered by the Subscriber, schedules, enrolment details, Student activity and outcomes;
- Integration with government-provided and stored ‘Unique Student Identifiers’;
- Exporting of data to text files (“Output Data”) which the Subscriber may use in an effort to meet national reporting requirements under the Australian Vocational Education and Training Management Information Statistical Standard (“AVETMISS”).
- Access to training and support in accordance with clause 5.3;
- Other related and subsidiary services and functionality not listed above in clause 2.2.a – 2.2.g.
- (the provision of access to the Platform, and the functionality and services listed above, are collectively referred to as the “Services” and “Services” for a Subscriber means the Services available to that Subscriber).
- DNA Progression reserves the right to alter or remove any Services or introduce new functionality or services at any time without notice to Users.
- The Student Learning Portal is not available to all Subscribers. Subscribers wishing to access and utilise the Student Learning Portal should contact support@Weworkbook.com for further information. Additional charges (being the SLP Charges) apply to access the Student Learning Portal.
3. Subscriber Account
- When a Subscriber registers a Subscriber Account, they must provide details including the following:
- Name of trading entity;
- Business Name;
- Contact Person:
- Business address;
- E-mail address;
- Telephone number; and
- Other details requested by DNA Progression from time to time.
- Subscribers will be required to create a unique password to obtain access to their Subscriber Account (“Password”) and must maintain the confidentiality of their Password.
- Users agree that DNA Progression may send e-mails to their nominated e-mail address for the purpose of receiving any notifications from the Platform.
- Subscribers agree to not transfer any Subscriber Account to any other person, or allow access to their Subscriber Account except their authorised Subscriber Representatives. DNA Progression maintains the right in its sole unfettered discretion to refuse to register a Subscriber Account. Each Subscriber must actively monitor and set appropriate permissions for each Subscriber Representative using the Platform and the relevant Subscriber Account.
- Subscribers agree to remain entirely responsible and liable at all times for all conduct connected with their Subscriber Account, including all conduct of Subscriber Representatives.
- In addition to the termination rights contained in clause 13 below, DNA Progression reserves the right to suspend access to a Subscriber Account without notice until all outstanding Charges are paid.
4. Training, Support and Help Files
- After the Commencement Date, DNA Progression will provide initial web-based training to the Subscriber on the use of the Platform and will provide the Subscriber with access to user help files for training purposes (the “Help Files”).
- The Subscriber agrees to ensure all Representatives who use the Platform have read the Help Files and received adequate training on the use of the Platform.
- Email and telephone support on technical issues relating to the access and use of the Platform during 9am – 5pm AEDT;
- Access to any updated versions of the Platform suitable for the Subscriber’s operating system; and
- On-site support at the Subscriber’s place of business, if requested by the Subscriber, to be charged at the Hourly Rate in accordance with Schedule 1.
- Access to additional support services will incur a further fee in accordance with Schedule 1.
5. Certificates and Output Data
- Subscribers may use the Platform to generate reports regarding courses, enrolments, Students and other details (“Output Data”) in order to assist the Subscriber to meet AVETMISS requirements and/or other requirements under relevant laws and regulations (“Legal Requirements”).
- DNA Progression has no control over, or input into, the Output Data, because this is automatically generated based on the Content that the Subscribers and Students themselves supply. Accordingly, DNA Progression cannot guarantee, warrant or represent that the Output Data will be accurate, complete, free from technical problems or meet any Legal Requirements and DNA Progression accepts no responsibility, and disclaims all liability for, any loss, damage, expense, cost or liability suffered or incurred by any person as a direct or indirect result of reliance on any Output Data.
- It is the responsibility of each Subscriber to ensure the accuracy of all Subscriber Content.
- DNA Progression may in its discretion provide assistance to Subscribers to amend Output Data to meet Legal Requirements, which may incur an additional fee in accordance with Schedule 1.
6. Faults and Maintenance
- If access to the Platform is unavailable for a User due to a system malfunction caused by DNA Progression (“System Malfunction”), DNA Progression will use all reasonable endeavours to rectify that System Malfunction within 2 business days of being notified in writing of the System Malfunction by the affected User.
- If a User is unable to access the Platform due to a System Malfunction for more than 2 business days, DNA Progression will use all reasonable endeavours to:
- Assist the User to access any required Content through other reasonable means; and
- Rectify the System Malfunction as soon as possible to minimise any further disruption to the User.
- DNA Progression reserves the right to perform maintenance of the Platform without notice to Users.
7. Users’ Obligations
- Users warrant to DNA Progression that they shall not:
- Interfere or attempt to interfere with, or obtain or attempt to obtain unauthorised access to, the Platform or any Content through hacking, use of automated devices, scripts or bots, or other illegitimate means;
- Scrape or otherwise obtain any data from the Platform for any purpose or use any Content to spam third parties;
- Interfere or attempt to interfere with the proper working of the Platform, or with any other person’s use of the Platform, including by transmission of viruses, malware or any code or other conduct of a disruptive or destructive nature;
- Impersonate any person or entity, solicit money from other Users or engage in any fraudulent activities via the Platform, either directly or via third-party software;
- Contribute or distribute any Subscriber Content via the Platform that infringes legislation or regulations of any applicable jurisdiction (including without limitation the jurisdiction in which a User is using the Platform). Users agree that any legal consequences arising from a claim or action for infringement of any such legislation or regulation are their sole responsibility and they are wholly liable.
- Users warrant that their Subscriber Content does not contain any:
- Obscene, blasphemous, hateful, violent, bullying, discriminatory or threatening language, or content that creates a risk of personal injury or property damage or makes any threat to people or public safety;
- Illegal, false, fraudulent, misleading or deceptive conduct, including but not limited to blackmail, extortion, financial or personal scams and attempts to impersonate others;
- Content that infringes the personal or proprietary rights of others, including but not limited to intellectual property rights and rights to privacy; or
- Spam, publicity or promotion of commercial activities or commercial content not specifically authorised by us with our prior written consent.
- Users must comply, and are solely responsible for complying, with all laws and regulations applicable or relevant to the use of the Platform (“Laws”).
- Users are solely responsible for their conduct in the course of using the Platform, including uploading and distribution of any Content by that User. Users will not infringe the rights of any other person or act in a way that constitutes a breach of any agreement they may have with any person by contributing any Content to the Platform.
- DNA Progression periodically creates back-up copies of Platform Content and Subscriber Content; however, DNA Progression is not responsible for any loss of, or damage to, any Platform Content or Subscriber Content. DNA Progression shall on reasonable notice make the Subscriber Content and related data, documentation or records maintained on behalf of the Subscriber available for inspection by the Subscriber however this may incur an additional fee in accordance with Schedule 1.
- DNA Progression will endeavour to notify Users in writing if there is any change to the way in which Content is hosted, backed up, stored, secured or encrypted.
- DNA Progression will take reasonable steps to notify the relevant User of any breach relating to the security of their Subscriber Content, the extent of the breach, and the actions being taken by DNA Progression to resolve the breach and mitigate any future security breach. While DNA Progression will use reasonable endeavours to ensure the security of Subscriber Content, to the extent permitted by law, DNA Progression will not be responsible in any way for any breach in security.
10. Intellectual Property
- The Intellectual Property subsisting in any aspect of the Platform Content and Output Data including without limitation text, graphics, artwork, logos, software, trade marks, designs, copyright, compilations, algorithms, video recordings and audio recordings, as well as the structure, layout, user interface and “look and feel” of the Platform (“Platform IP”), is exclusively owned by, licensed to and/or otherwise controlled by DNA Progression and/or its third party affiliates, licensors and/or licensees, and is protected by Australian and international law governing intellectual property rights. The Platform IP remains DNA Progression’s exclusive property throughout the world in perpetuity.
- Users are not permitted to save, download, reproduce, display, copy, alter, conceal, adapt, perform, transmit, broadcast, sell, license or otherwise exploit any Platform IP unless it is Output Data (in which Users have the rights set out in clause 10.5) or unless they have express prior written authorisation from DNA Progression. Any use of Platform IP by Users not permitted by this clause 10.2 is strictly prohibited.
- Subject to the rights granted to DNA Progression under clause 10.4, Subscribers will retain their existing rights in and control over any Intellectual Property subsisting in their Subscriber Content.
11. General Disclaimers & Limitation of Liability
- DNA Progression is not responsible for Subscriber Content or other material that is created or otherwise appears via the Platform. DNA Progression does not endorse, support, represent or guarantee the accuracy, completeness or reliability of Subscriber Content appearing on the Platform and takes no responsibility for Subscriber Content but maintains the right to remove, block, edit or monitor any Subscriber Content at DNA Progression’s sole discretion, whether publicly viewable or otherwise, without notice to any party.
- The Platform may from time-to-time integrate with or host hyperlinks to third-party web services or host third-party information or content on the Platform. All third-party content is the responsibility of its author, and DNA Progression does not endorse or represent the views or opinions contained therein. DNA Progression is not responsible for any material contained on third-party web services and any dealings between Users and third parties are Users’ sole responsibility.
- Notwithstanding clauses 11.1 – 11.3, the provision of access to, and use of, the Platform by Users is on an “as is” basis and entirely at their own risk. DNA Progression is not responsible in any way to Users in the event that the security of Content on the Platform is compromised in any way, and DNA Progression disclaims its liability in this regard as per clause 13.
- Subject to the application of any Non Excludable Conditions, Users hereby release DNA Progression from all claims and DNA Progression is not responsible nor liable for any injury, illness, direct or indirect damage, loss (financial, reputational or otherwise) or consequential, exemplary or aggravated damages arising from any of the following matters (“Platform Matters”):
- The use of, or inability to use, the Platform by Users;
- Any failure by DNA Progression or other third parties to provide any information, service, feature or functionality via the Platform;
- Any unauthorised submission of information to the Platform;
- Statements or conduct of any third party using the Platform;
- Use of third-party services in conjunction with the Platform by Users;
- Any communication or interaction between Users via the Platform, whether online or offline;
- Any Content that is created, or otherwise appears, via the Platform; and
- Where a User fails to comply with any Law, Industry Regulation or the Privacy Act when dealing with Personal Information in connection with the Platform.
- In the event any part of the Disclaimers & Limitations is not enforceable for any reason, then DNA Progression’s maximum aggregate liability arising from or relating to any claim (or series of related claims) by a User, howsoever arising (whether based in negligence or any other tort, contract, statutory liability or otherwise, and including from or relating to the provision by DNA Progression of the Platform or any associated services, or the conduct of any Users) shall not exceed the price paid for Fees by that User to DNA Progression to use the Platform in the past 12 months.
13. Termination & Retention of Data
- Without cause, by giving 3 months’ written notice to the relevant Subscriber;
- Immediately without notice where the Subscriber becomes Insolvent.
- In the event that a Subscriber Account is terminated or cancelled:
- The Subscriber will be provided with 90 days from the date of termination orcancellation to extract all data it requires from the Platform;
- Should the Subscriber wish and only upon payment of the applicable Charges, DNA Progression will export and provide the Subscriber with a copy of all Subscriber Content and Output Data connected with their Subscriber Account; and
- DNA Progression is unable to delete encrypted back-ups of Subscriber Content from a specific Subscriber Account (if such back-ups exist) which is commingled with the Subscriber Content of other Subscriber Accounts. If there are encrypted back-ups for an Subscriber Account which are to be deleted, DNA Progression will continue its usual procedure for creating encrypted back-ups such that the Subscriber Content for the specific Subscriber Account in any existing encrypted back-ups is superseded and/or deleted, and DNA Progression will also undertake not to extract Subscriber Content from any encrypted back-ups.
- Cancellation of a Subscriber Account does not relieve the Subscriber of any obligation to make payment of Charges incurred by that Subscriber prior to the date of termination.
15. Jurisdiction & Choice of Law
SCHEDULE 1 – SUBSCRIBER CHARGES
- In order to be entitled to register a Subscriber Account, a Subscriber must first pay a one-off installation charge (“Installation Fee”) as well as the first instalment of the Annual Access Fee in accordance with Item 1.4 below.
- If a Subscriber Account is terminated or cancelled and the relevant Subscriber subsequently wishes to reinstate the Subscriber Account, they must proceed through the set-up process again (including payment of the Installation Fee again).
- Payment of the applicable portion of the Annual Access Fee must be made in advance on or before the commencement of each billing period (which may be monthly or annually).
- When the Subscriber chooses to make an upfront payment of the Annual Access Fee in full, DNA Progression may in its discretion discount the amount owing.
- DNA Progression reserves the right to charge for all services requested or required in addition to the Services covered by the Annual Access Fee at the rate of $121 per hour or such other rate as is agreed between DNA Progression and the Subscriber (the “Hourly Rate”). Wherever reasonably practicable, DNA Progression will seek the Subscriber’s approval before commencing to charge the Hourly Rate. However, the Subscriber is on notice that certain kinds of additional services will attract the Hourly Rate as listed below in Item 1.7 and seeking the Subscriber’s prior approval may not always be possible.
- The following are examples only of the kinds of services which will attract the Hourly Rate:
- Making modifications to the Platform requested by the Subscriber;
- Providing Output Data requested by the Subscriber;
- Providing data import services; and
- Providing on-site, additional or after-hours support services or support.
- DNA Progression further reserves the right to charge the costs of any travel and accommodation expenses incurred by DNA Progression where reasonably necessary, and will endeavour to provide the Subscriber with prior notice of such expenses where practicable.
- DNA Progression reserves the right to review the Installation Fee, Annual Access Fee and the Hourly Rate:
- Every 2 years based on the higher of the increase in CPI, the direct cost of providing access to the Platform or the Services or the commercial price of comparable applications or hourly rates;
- On release of a new version of the Platform.
- However, DNA Progression will not charge any Hourly Rate or increase under Item 1.6 above without first providing the Subscriber with notice of the change and will only commence to charge the relevant cost at the commencement of the next Billing Period.
- Subscribers may pay an additional fee to gain access to the Student Learning Portal – see Annexure A for further details on the SLP Add-on Charges.
- All Charges are in Australian dollars and are inclusive of GST where applicable.
- DNA Progression will issue a tax invoice to Subscribers for all Charges to the email address nominated by the Subscriber. It is the Subscriber’s responsibility to keep this e-mail account updated to ensure all invoices are received. Subscribers must pay all Charges within 14 days of receipt of the invoice, without any deduction or set-off.
- Charges may be paid by electronic funds transfer, direct debit or credit card (where available).
- Subscribers must provide true and accurate billing information (including where relevant, the name of the credit card holder, billing address, date of expiry and CVC code) and may also be required to provide a form of verification to establish that they are the genuine credit card holder, or otherwise have the authority to use that credit card.
- It is the responsibility of all Subscribers to keep their credit card details secure when using the Platform. If a Subscriber suspects that an unauthorised person has accessed their Subscriber Account, they should notify DNA Progression and their card issuer immediately.
- A Subscriber’s card issuer agreement will govern the use of their designated credit card with the Platform, and will determine their rights and liabilities as a card holder.