Operative Part

1.  DEFINITIONS AND INTERPRETATION

1. 1. Definitions
      The following terms are used regularly throughout this Agreement and have a particular meaning.  Unless the contrary intention appears:
      1. Guroo Academy means the Company’s upskilling learning platform accessible via a client specific sub-domain created for each client.
      2. Guroo Grow means the provision of platform features and services to support the sale of a client’s courses and educational solutions to individuals and businesses.
      3. Guroo Success means the provision of managed services to support course participants, learning delivery, and program and course management.
      4. Guroo Studio means the provision of Learning Design services to support the scoping, design, and production courses and assets.
      5. Guroo Pro means the Company’s product used to outline and author digital learning content that can be distributed on learning management systems and similar platforms.  The product includes Analytics functionality to enable analysis and control of digital learning content including obtaining in-depth data and insights to track and measure user outcomes, as well as streaming learning content from Guroo Pro to other learning management systems and similar platforms.
      6. Business Day means a day (other than a Saturday, Sunday or public holiday) on which banks are open for general banking business in Sydney, Australia.
      7. Company Content means any content that the Company makes available to Users in the Library or for use in a Learning Experience.
      8. Fees means the fees for use of a Product as agreed between the Company and Client either online or in a SOW.
      9. GST has the meaning given by the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
      10. Intellectual Property means any intellectual property and proprietary rights, whether registrable or not, including all copyright, patents, inventions, source code, trade secrets, know-how, product formulations, designs, databases, registered or unregistered trademarks, brand names, business names, domain names, Confidential Information and the right to have information kept confidential and other forms of intellectual property of a party in any part of the world, and including applications for the registration of any such rights and any improvements, enhancements or modifications to such rights and Intellectual Property Rights has a corresponding meaning.
      11. Learning Experience means an online or blended learning lesson consisting of video, audio, images, multimedia, interactive media or text content, documents, questionnaires, assessments, free-text answers, Company Content, and any User Content.
      12. Learning Content means any content made available via a Learning Experience.
      13. Privacy Act means the Privacy Act 1988 (Cth).
      14. Privacy Policy means the Company’s privacy policy as updated from time-to-time, which can be found at http://www.guroolearning.com/privacy-policy.
      15. Product means Guroo Academy, Guroo Pro and/or any technology platform or feature developed and provided by the company            
      16. SOW means a statement of work, scope, project specification, proposal or quote prepared by the Company and accepted by Client in writing which incorporates the terms and conditions of the Company’s master service agreement accessible at http://www.guroolearning.com/msa or such other services agreement agreed to between the Company and Client.        
      17. Terms of Service means the terms and conditions of using Guroo Academy and/or Guroo Pro as updated from time to time, which can be found at https://guroolearning.com/terms.
      18. TPS means a third-party browser such as Google or Safari.
      19. User means an individual authorised by Client to access a Product.
      20. User Content means images, information, documents or other data that is created, uploaded or input into Guroo Pro by a User.
      21. Website means http://www.guroolearning.com.

2.  USING PRODUCTS

1. Administration and related matters

1. 1. 1. Client must advise the Company of:
         1. the individuals who are permitted to access a Product via Client’s account and the level of access to be provided to each User; and
         2. the User/s who will be Client’s administrator/s and the sole point of contact for the Company.
      2. Products are only available to Users over the age of 18.  Users under the age of 18 (Minor) must not use a Product without their parent or legal guardian’s consent and Client warrants that any User who is a Minor has such consent and will on request provide such consent to the Company.
      3. Client must ensure that all usernames and passwords for access to Products are kept secure and only used by the User to whom they are assigned.  Client must notify the Company as soon as it becomes aware of any unauthorised access to or use of a Product.
      4. If a User registers or logs in to a Product using a TPS, the User must not breach the terms and conditions for use of the TPS.  Client must ensure that Users are aware that the Company may use data from a TPS to create the User’s profile in a Product.
         

2. Licence

1. 1. 1. The Company grants Client (up to the number of Users agreed with the Company unless usage is unlimited) a non-exclusive, non-transferable revocable licence to access and use the Product Client has subscribed to subject to the terms of this Agreement and any SOW.
      2. A Product must only be used:
         1. for legal purposes and not for any conduct that is unlawful, immoral, threatening, abusive or in a way that is deemed unreasonable by the Company in its discretion; and
         2. in accordance with this Agreement and any documentation provided by the Company.
      3. Client is responsible for each User’s access to and use of a Product in accordance with this Agreement.  Client must ensure that a User has and maintains any qualifications, certifications, and registrations required in order to provide or participate in Learning Experiences or use Learning Content
      4. The Company may revoke or suspend Client’s or a User’s access to a Product in its absolute discretion for any reason, including for breach of the terms and conditions of this Agreement.
      5. The Company makes no representation as to the accuracy of any information contained in a Learning Experience, including any Learning Content.
      6. Client is solely responsible to each User that uses a Product or participates in a Learning Experience.
      7. Client agrees that all Intellectual Property Rights in the Products is the sole and exclusive property of the Company and Client (and its Users) must not except to the extent expressly permitted in this Agreement:
         1. copy the Products or any services for their own commercial purposes or to build competitive products;
         2. directly or indirectly copy, recreate, disassemble, decompile, translate, reverse engineer or otherwise seek to obtain or derive, modify or use any source or object code, underlying ideas, architecture or algorithms contained in a Product or any associated documentation except to the extent expressly permitted by applicable law (and only after notice to the Company);
         3. rent, lease, distribute, sell, sublicense, transfer or provide access to a Product to a third party;
         4. remove or obscure any proprietary or other notices contained in a Product or any documentation; or
         5.  infringe the Company’s or any third party rights through the use of a Product.
      8. If a Product contains links to any third party websites, these websites are not controlled by the Company and the Company is not responsible for any information or content on such websites.
      9. License commencement date is the signing of agreement unless otherwise specified in the schedule.

3. Software-as-a-Service

1. 1. 1. The User agrees and accepts that the Products are:
         
         
         1. Hosted by the Company and shall only be installed, accessed and maintained by the Company, accessed using the internet or other connection to the Company servers and is not available ‘locally’ from the User’s systems; and
         2. Managed and supported exclusively by the Company from the Company servers and that no ‘back-end’ access to the Products is available to the User unless expressly agreed in writing.
         3. As a hosted and managed service, the Company reserves the right to upgrade, maintain, tune, backup, amend, add or remove features, redesign, improve or otherwise alter Guroo Academy and/or Guroo Pro.

4. User Content

1. 1. 1. Where a User makes User Content available via a Product, Client acknowledges:
         1. that User Content will be made available as Learning Content which other Client Users may use and there may be no attribution to the User as the author of such User Content; 
         2. it is Client’s responsibility to obtain a User’s consent to the use of the User’s User Content for the purposes of Learning Experiences; 
         3. the Company has no responsibility for:
            1. User Content or any use of the User Content by any person;
            2. for the results or outcomes of a Learning Experience;
            3. for any changes made to User Content or Learning Content by any person including a User; 
         4. if User Content includes brand, logo or other Intellectual Property Rights, the Client grants the Company and other Client Users a non-exclusive, worldwide license to use the User Content in Guroo Pro, for the term of this Agreement;
         5. the Company may suspend accessibility to User Content if the Company in its sole discretion determines it is illegal, offensive, indecent or objectionable; and
         6. the Company may delete User Content on termination of this Agreement.
      2. Client indemnifies and holds harmless the Company from and against all loss, damages, liability, claims or proceedings howsoever arising resulting from or in connection with User Content including claims of Intellectual Property infringement. 

5. Feedback

The Company owns any Intellectual Property Rights in any feedback submitted to the Company by Client or a User, whether via a Product or by other means including (without limitation) any source code, analytics, insights, ideas, enhancements, feature requests, suggestions or other information (Feedback).  Client assigns to the Company any Intellectual Property Rights subsisting in Feedback.  Without limiting the Company’s rights, the Company may freely use, copy, disclose, licence, distribute and exploit any Feedback in any manner without any obligation to Client.  Feedback is not considered the confidential information of Client or a User.  

6. Support

1. 1. 1. The Company provides technical support for the Products only via the email address support@guroolearning.com and only to Client’s nominated administrator/s.  The Company does not provide support directly to Users other than the nominated administrator/s.
      2. The Company endeavours to respond to all support requests within 2 Business Days.
         

7. Availability

Client acknowledges that the Products may not operate uninterrupted or error free and that:

1. 1. 1. access to a Product may be prevented by issues outside of the Company’s control; and
      2. the Company accepts no responsibility for ongoing access to or the unavailability of a Product.
         

3. FEES, PAYMENTS AND REFUNDS

1. Fees

1. 1. 1. The Fees for use of a Product are as set out either in a proposal or in a SOW or both and are payable in advance at such frequency or on such dates as agreed by the Client.
      2. Client (and its Users) must not access a Product if Client has not made a payment when due.
      3. The Company reserves the right to introduce or change any Fees from time to time (including when new features or functions are made available) by giving the User no less than 14 days’ written notice.  Any new or changed Fees will apply at the next billing period after Client has been given notice.
      4. If a Client does not accept a change to Fees, it may give notice to the Company to terminate this Agreement prior to the commencement of the next billing cycle.
         

2. Currency

All Fees are quoted in Australian dollars, unless otherwise stated. Transactions may be processed in a foreign currency (such as US dollars or British pounds) at the Company’s discretion and in the amount determined by the Company, acting reasonably (taking into account transaction and other fees and expenses).

3. GST

For Clients in Australia, GST is applicable to any Fees charged by the Company to Client.  Unless otherwise stated, all Fees are exclusive of GST. The Company will provide Client with a tax invoice in accordance with the A New Tax System (Goods and Services Tax) Act 1999 (Cth).

4. Refunds

No refunds of Fees will be given other than as required by law.

5. Late Payment

1. 1. 1. If Client does not pay the Fees when due, the Company may suspend all User access to the Products for that Client account.
      2.  If Fees are not brought out of arrears within 28 days of becoming overdue, the Company may terminate Client’s account and access to Products and terminate this Agreement by giving notice to Client.
      3. Client acknowledges and agrees that the Company is not responsible or liable in any way for:
         1. interruptions to the availability of a Product or User Content in the event of (a) or (b); or
         2. loss of User Content in the event of (b).
            
            
            

4.  LIABILITY AND INDEMNITY

1. Client’s risk and indemnity

1. 1. 1. Client agrees that it uses the Products at its own risk.
      2. Client agrees to indemnify and hold harmless the Company from and against any liability, claim, loss, damage, cost or expense that the Company may suffer or incur as a result of or in connection with the use by Client and Users of a Product and any breach by Client or a User of this Agreement.

2. Liability Limitations and Exclusions

To the extent permitted by law:

1. 1. 1. in no circumstances will the Company be liable for any direct, special, incidental, consequential or indirect loss or damage whatsoever arising as a result of this Agreement and the provision or use of a Product and any services (including damage to or loss of property, loss or corruption of data, loss of profits, goodwill, bargain or opportunity, loss of anticipated savings or any other similar or analogous loss resulting from access to, or use of, or inability to use a Product) whether based on breach of warranty or contract, tort, negligence, in equity or any other legal theory, and whether or not the Company knew or should have known of the possibility of such damage;
      2. if Client is dissatisfied with a Product, Client’s sole and exclusive remedy is to cease using the Product and to terminate the Agreement.  No fees paid in advance are refundable;
      3. the Company excludes all conditions and warranties implied by law, custom or otherwise;
      4. the Company’s liability for breach of a statutory guarantee or any implied warranty or condition that cannot be excluded, restricted or modified is limited, at the Company’s option to:
         1. the re-supply of services or payment of the cost of re-supply of services; or
         2. the replacement or repair of goods or payment of the cost of replacement or repair;
      5. if notwithstanding the foregoing, the Company is liable to Client for any loss or damage, the Company’s total aggregate liability is limited to $20,000.

5.  TERMINATION

1. Term

The term of this Agreement is for successive periods of 12 months, commencing from the date the Effective Date.  The term will automatically renew at the end of each 12-month period unless Client has given the Company at least 30 days’ written notice prior to the end of the then current 12 month period.

2. Accrued rights and survival

Termination of this Agreement is without prejudice to and does not affect the accrued rights or remedies of the parties arising in any way out of this Agreement up to the date of termination.

3. The rights and obligations under clauses 2, 4, 6.2, 6.3, 6.5 survive termination of this Agreement.

6.  GENERAL CONDITION

1. Modification of terms

1. 1. 1. The terms of this Agreement may be updated by the Company from time to time.
         
         
      2. Where the Company modifies the terms, it will provide Client with written notice, and Client will be required to accept the modified terms in order to continue using a Product. 
         
         

2. Privacy

The Company will collect personal information of Users and will do so in accordance with the Privacy Policy.  Client warrants and represents that:

1. 1. 1. it has read and agrees to the Privacy Policy; and
      2. it has advised Users that their personal information will be collected by the Company if they access a Product and will be handled in accordance with the Privacy Policy or as otherwise permitted by applicable law.

3. Data and Security

1. 1. 1. Security
         The Company takes the security of its infrastructure and systems, and the privacy of its Users very seriously.  The User agrees that the User shall not do anything to prejudice the security or privacy of the Company’s systems or the information on them and the Client must not and must ensure that Users do not do anything to prejudice the security or privacy of the Products, the Website or any data in them.
         
         
      2. Transmission
         The Company shall do all things reasonable to ensure that the transmission of data occurs according to accepted industry standards including the standards required under GDPR if applicable.  It is up to the Client to ensure that any transmission standards meet the Client’s operating and legal requirements.
         
         
      3. Data Use
         The Company reserves the right to access Client’s and Users data for the purposes of detailed product feature usage reporting and to use for personalised promotions. The Company will not access the specific learning content written by the company except for the purpose of supporting the client and providing other implementation or learning design services. 
         
         
      4. Backup
         The Company shall perform backups of its entire system in as reasonable manner at such times and intervals as is reasonable for its business purposes.  The Company does not warrant that it is able to backup or recover specific Client data from any period of time unless so stated by the Company in writing.

4. Storage

The Company stores the Products, files and databases on servers based in Australia. If Client requires any data to be stored in a different location, the Company may decline or charge Client a fee to do so. 

5. Force Majeure

Without limiting anything else in this Agreement, the Company is not liable for any delay or failure to perform its obligations under this Agreement or any unavailability of or interruption to a Product or any services due to circumstances beyond the control of the Company including but not limited to: 

1. 1. 1. acts of God, lightning strikes, earthquakes, floods, droughts, storms, tempests, mud slides, explosions, fires or natural disaster;
      2. pandemics, acts of war, acts of public enemies, terrorism, riots, civil commotion, malicious damage, sabotage and revolution;
      3. acts or orders of Government;
      4. interruptions to, unavailability or failure of third party services utilised by the Company or a Product; or
      5. viruses, failure of internet or telecommunication services.
         

6. Dispute Resolution

1. 1. 1. If any dispute arises between the parties in connection with this Agreement (Dispute), then either party may notify the other of the Dispute with a notice (Dispute Notice) which:
         1. includes or is accompanied by full and detailed particulars of the Dispute; and
         2. is delivered within 10 Business Days of the party giving notice becoming aware of the circumstances giving rise to the Dispute.
      2. Within 10 Business Days after a Dispute Notice is given, a representative of each party with the authority to resolve the dispute, must meet (virtually or otherwise) and seek to resolve the Dispute.
      3. Subject to clause 6.6(d), a party must not bring court proceedings in respect of any Dispute unless it first complies with the requirements of this clause.
      4. Nothing in this clause prevents either party from commencing court proceedings to seek urgent injunctive, interlocutory or declaratory relief in respect of a Dispute.
      5. Despite the existence of a Dispute, the parties must continue to perform their respective obligations under this Agreement provided that if the Dispute relates to payment of Fees the Company may suspend performance of its obligations.

7. Notices and communications

1. 1. 1. Client can direct notices, enquiries, complaints and other communications to the Company at the address set out below. The Company will notify the Client of a change of details from time to time.
         
         Guroo Producer Pty Ltd
         
         G04/38-52 Waterloo Street
         Surry Hills NSW 2010
         Australia
         
         email:joshhumphries@guroolearning.com
      2. The Company will send Client notices and other correspondence to the details that Client submits to the Company when establishing its account. It is the Client’s responsibility to update its contact details as they change.
      3. Any notice or other communication is effective if it is sent as an electronic message to the Client details or details subsequently notified to the Company from time to time. It is the Client’s responsibility to advise the Company if notices are required to be mailed or physically delivered.
      4. A notice is deemed to have been effectively delivered as indicated:
         1. if in writing and delivered in person or by courier, on the date it is delivered;
         2. if sent by facsimile transmission, on the date that transmission is received by a responsible employee of the recipient in legible form;
         3. if sent by certified or registered mail (airmail, if overseas) or the equivalent (return receipt requested) on the date that mail is delivered or its delivery is attempted;
         4. if sent by electronic messaging system, on the date that electronic message is received.

8. Precedence

To the extent that this Agreement is inconsistent with an MSA, the terms of the MSA shall prevail. To the extent this Agreement is in conflict with, or inconsistent with any special conditions agreed to between the Company and Client relating to this Agreement, those special conditions prevail.

9. Non-Solicitation For Employment

The parties agree that neither party and their associated entities, sub-contractors or their employees will employ or approach for employment, the employees or ex-employees of the other party, during the term and until a minimum period of six (6) months following the termination of this agreement.

10. Entire Agreement

Each party acknowledges that it has not relied on any representation, warranty or statement other than as set out in this Agreement.


11. Waiver

No clause of this Agreement will be deemed waived and no breach excused unless the waiver is given in writing.

12. Further assurances

Each party must do anything necessary (including executing agreements and documents) to give full effect to this Agreement and the transactions contemplated by it.

13. Severability

Any clause of this Agreement or part thereof, which is invalid or unenforceable, is ineffective to the extent of the invalidity or unenforceability without affecting the remaining clauses of this Agreement.


14. Assignment

The Company may assign or otherwise create an interest in its rights under this Agreement by giving written notice to Client.  Client may not assign or otherwise create an interest in this Agreement.


15. Governing Law

This Agreement is governed by the laws of New South Wales, Australia.  Each of the parties hereby submits to the exclusive jurisdiction of the courts of New South Wales, Australia.

You represent and warrant that you have the right, authority and capacity to accept and agree to this Agreement on behalf of the Client.