BINDING OPERATION OF THESE LICENSE TERMS AND CONDITIONS
The provisions of this Agreement govern all access to and use of the Online Services and any other material (in any format) provided in conjunction with this Agreement. Permission to Access the Online Services is conditional upon you, the Licensee, agreeing to the terms set out below. If you have already agreed terms with us or with any other parties relating to the Online Services (“Other Terms”), these terms will act in addition to the Other Terms. If there is any inconsistency or conflict between Other Terms and these terms then these terms will take precedence to the extent of any inconsistency or conflict.
DO NOT ACCESS, OPERATE OR USE THE ONLINE SERVICES UNLESS YOU ACCEPT ALL THE TERMS OF THIS AGREEMENT. YOUR ACCESS AND/OR USE OF THE ONLINE SERVICES WILL CONSTITUTE YOUR ACCEPTANCE OF THESE TERMS AND CONDITIONS. IF YOU DO NOT ACCEPT THESE TERMS AND CONDITIONS DO NOT ACCESS AND/OR USE THE ONLINE SERVICES.
IMPORTANT WARNINGS RELATING TO USE OF THE ONLINE SERVICES.
THE INFORMATION CONTAINED IN THE ONLINE SERVICES IS PRESENTED ONLY FOR THE PURPOSES OF EDUCATION. THE LICENSE DOES NOT PERMIT USE OF THE ONLINE SERVICES FOR ANY OTHER PURPOSE AND (WITHOUT LIMITATION) THE ONLINE SERVICES MUST NOT BE USED IN CONNECTION WITH (a) MEDICAL DIAGNOSIS, ASSESSMENT, ADVICE OR TREATMENT FOR PATIENTS; or (b) CALCULATING OR DETERMINING APPROPRIATE DOSAGES OF MEDICATION OR OTHER SUBSTANCES; or (c) EVALUATION OF THE CLINICAL OR OTHER COMPETENCY OF ANY PERSON. If any medication protocols, regimes, or guidelines are provided as part of the Online Services (or provided or made available at any other time by the Licensor) which includes information on dosage and rates of administration of medications (“Guidelines”), these are provided solely for use in an educational environment and are subject to all the terms and conditions of this Agreement including the prohibitions specified above.
Without limiting any other provisions of this Agreement, the Licensor and its related corporations and their respective officers, employees and agents each disclaim any and all liability or other legal responsibility for (a) the accuracy or currency of the information in the Online Services; and (b) the accuracy of the appearance of any representations of medications, other substances or equipment.
Any animations, simulations or images used (in any part of the Online Services) are not meant to depict or represent any real products or suggest any relationship, affiliation, association with or endorsement by any organization, company or product. Any similarities between simulated medications, equipment and nursing tools used in the Online Services and actual branded medications, equipment and nursing tools is coincidental. All names and addresses (and other personal details) of persons referenced or depicted in the Online Services are fictional and any similarities to real persons (or any other personal details) is unintended and entirely coincidental.
It is the Licensee’s responsibility to download and keep a copy of any and all educational records (including but not limited to certificates) that they may obtain at any time through the Online Services.
1. DEFINITIONS In this Agreement, unless the contrary intention appears: (a) “Access” means access and/or use of the Online Services strictly in accordance with the terms of this Agreement and not for a Prohibited Purpose. (b) “Agreement” means this agreement for the licensing of the Online Services. (c) “Extended Term” means an optional additional limited period of time after the Initial Term which is subject to the payment of an additional License Fee. (d) “Initial Term” means the initial limited period of time allocated for (i) a free trial of the Online Services; or (ii) access and use permitted as a result of a payment of the License Fee by you or by a person or organization on your behalf. (e) “Learning Management System” or “LMS” means the online platform on which the Online Services is hosted. The LMS may be hosted by us or by a third party (at our absolute discretion) and all details related to that hosting (including but not limited to the location and type of servers used) are entirely at our or the third party’s discretion. (f) “Liable Entity” means the Licensor or any of its related corporations or any of their respective officers, employees and agents and “Liable Entities” means all or any of them. (g) “Licensee” or “you” means the person who seeks to Access the Online Services pursuant to: (i) a free trial; or (ii) as a result of payment of the License Fee made by that person (or payment made by another person or organization on that person’s behalf). (h) “License Fee” means the fee (if any) paid by you or on your behalf to obtain a license to Access the Online Services for the duration of the Initial Term or for an optional Extended Term. The amount of the applicable License Fee is specified on the Website or set out in the Other Terms and may vary from time to time. (i) “Licensor” or “us” or “we” or “our” means IntelliLearn Training Pty Ltd (Australian Business Number: 47 644 075 543). (j) “Online Services” means any of the online courseware which is made accessible to the Licensee pursuant to this Agreement and any enhancement, modification, update or new release of the Online Services or parts thereof irrespective of whether or not the Licensee becomes entitled to use that enhancement, modification, update or new release. For the avoidance of doubt, the Online Services will include (1) all responses and other content submitted by the Licensee in connection with their use of the online courseware and the LMS; and (2) any and all materials (in any format) that can be accessed through or downloaded from the LMS, Online Services or Website including (but not limited to): videos, images, files and documents (in any and all formats). (k) “Prohibited Purpose” means (without limiting any other restrictions on the nature and extent of use of the services) the use of any of the Online Services for any one or more of the following reasons: (i) medical diagnosis; (ii) treatment of a patient; (iii) provision of medical advice; (iv) calculating or assessing the appropriate dosages of medication or other substances to be administered; (v) evaluation of the clinical or other competency of a person; or (vi) any other purposes apart from educational purposes. (l) “Website” means any website from which the Online Services can be accessed or a License Fee paid.
2. INTERPRETATION In this Agreement, unless the contrary intention appears: (a) headings are for convenience only and do not affect interpretation; (b) a reference to a person includes a reference to a corporation or partnership and to a person in the capacity as a trustee; (c) the plural shall include the singular and vice versa; (d) references to any party to this Agreement include its successors or permitted assigns; and (e) where two or more legal entities constitute the Licensee their liability shall be joint and several.
3. GRANT AND DURATION OF LICENSE (a) The Licensor hereby grants to the Licensee a personal, non-exclusive, non-transferable license to Access the Online Services in accordance with the terms and conditions of this Agreement for the duration of the Initial Term. (b) If, in our absolute discretion we so allow, the license issued pursuant to 3(a) may be extended for an Extended Term subject to the payment of an additional License Fee to the Licensor. (c) Regardless of whether or not the Licensee has paid a License Fee or been granted a free trial license or otherwise, the provisions of this Agreement apply (and the Licensee is strictly bound by the terms and conditions of this Agreement) on and from the earlier of: (i) the time at which the Licensee has paid the License Fee (if applicable); or (ii) the time at which the Licensee first accesses and/or uses the Online Services; or (iii) any previous time the Licensee may have first accessed and/or used any of the online courses or online materials that the Licensor may be authorized to license (i.e. in some circumstances the Agreement applies retrospectively). (d) Subject to the provisions of these terms (including clause 12) the license will terminate upon the completion of the Initial Term – or, if we agree to grant an Extended Term and an additional License Fee has been paid by the Licensee (or paid on the Licensee’s behalf) to the Licensor pursuant to 3(b), upon completion of the Extended Term. (e) The Licensor may terminate a free trial license at any time and for any reason (at the Licensor’s sole discretion) and the Licensor is under no obligation to advise or notify the Licensee of any such termination. (f) The duration of the Initial Term (and the duration of the Extended Term if applicable) will be determined by the License Fee paid and this information will be provided to the Licensee at the time of the Licensee’s payment of the License Fee.
4. LICENSE FEE (a) The Licensee is not entitled to access the Online Services until the License Fee (if any) has been paid and the terms of this Agreement have been accepted. (b) The Licensor is under no obligation to provide any refund of the License Fee paid at any time or for any reason. (c) The Licensee will not seek any refund or cancellation of payment made through a third party payment processor or challenge the validity of a payment once made through a third party payment processor.
5. LICENSE CONDITIONS (a) The Licensee may only use the Online Services in accordance with the normal operating procedures as notified by the Licensor. (b) The Licensee shall not copy, modify, reproduce, hack, maliciously interfere with or attempt to alter the Online Services except to the extent otherwise authorised by this Agreement. (c) Except to the extent specified to the contrary in this Agreement, the Licensor shall not be obliged to support the Online Services, whether by providing advice, training, error-correction, modifications, updates, new releases or enhancements or otherwise. The Licensor may modify, add to or remove from the Online Services in its absolute discretion at any time it wishes. (d) The Licensee acknowledges that there is no transfer of any intellectual property rights, title or ownership to the Licensee of the Online Services or in any modifications, updates or new releases of the Online Services. (e) The Licensee must not provide its username and/or password to any third parties or in any way assist any third parties to access the Online Services.
6. GENERAL CONDITIONS OF ACCESS & USE (a) We or third party licensors own and retain (at all times) all intellectual property rights relating to the Online Services and our materials (including any modifications, enhancements, updates, translations or adaptations of the same). There is no transfer (at any time) of any intellectual property rights (including but not limited to copyright) from us (or from any third party licensors) to the Licensee. (b) The Online Services are (i) made accessible to the Licensee (for a limited period of time depending on the License Fee paid or otherwise at our discretion if a free trial license is provided); and (ii) not sold to the Licensee who shall not acquire (at any time) any right, title or interest (including without limitation copyright) in the Online Services or any part thereof. (c) All rights in the Online Services whether existing or which may come into existence (at any time and for any reason) which are not specifically granted to the Licensee by this Agreement are expressly reserved and assigned to the Licensor or to third party licensors. (d) Upon our request the Licensee agrees to execute any additional documents and do all things reasonably required by the Licensor to give effect to the provisions of clauses 5(d), 6(a), 6(b), 6(c) or to any other provision of this Agreement. (e) The Licensee may Access the Online Services at its own expense and risk for the duration of the Initial Term – or (if an additional License Fee has been paid) for the duration of the Extended Term. (f) Access to the Online Services will be by login using a username and password from a web address that we may supply to you at any time by email, as may be displayed on our Website or otherwise. (g) The Licensee understands and acknowledges that a stable and reliable Internet connection is required to Access the Online Services. (h) The Licensee acknowledges that certain minimum technical specifications are required to Access the Online Services including (but not limited to) web browser and Operating System specifications. The Licensee is entirely responsible for ensuring it maintains these minimum specifications at all times. (i) The Licensee shall Access the Online Services: (i) only for the purposes of the Licensee’s education; and (ii) only as permitted by this Agreement. (j) The Licensee must not (and must not allow any other person to): (i) Use the Online Services for a Prohibited Purpose; (ii) Share their username or password with any third party; (iii) Assist any third parties to access the Online Services; (iv) Reverse engineer, disassemble, decompile, hack or maliciously interfere with any part of the Online Services or LMS; (v) Sub-license, sell, distribute, publish, transmit or otherwise make available to any third party any part of the Online Services; (vi) Copy, reproduce, adapt any part or the whole of the Online Services; or (vii) Modify or merge the Online Services with any other software or material. (k) The Licensee shall not do or omit to do or authorise any other person to do or omit to do any act which: (i) would or might invalidate or be inconsistent with any intellectual property rights of the Licensor; or (ii) would be in breach of or otherwise inconsistent with the moral rights of the authors of the Online Services. (l) The Licensee shall promptly inform the Licensor if the Licensee becomes aware of: (i) any unauthorised use of the Online Services; (ii) any actual, threatened, or suspected infringement of any intellectual property rights of the Licensor in the Online Services which comes to the Licensee’s notice; or (iii) any claim by any third party coming to its notice that the Online Services infringes the intellectual property rights of any other person.
7. SECURITY AND PRIVACY (a) The Licensee shall be solely responsible for the use, supervision, management and control of the Online Services. (b) The Licensee shall ensure that the Online Services is protected at all times from misuse, reverse engineering, hacking, destruction or any form of malicious or unauthorised use. (c) The Licensee agrees to allow the Licensor to contact it as may be required or desired by the Licensor. For example, the Licensor may contact the Licensee towards the end of an Initial Term or any Extended Term to advise of further optional extensions of the term of the license. (d) Some or all of the details the Licensee provides to us at any time and in any way (including but not limited to) before, during and after the license purchase or account registration process, as well as any and all data (or information) collected from the Licensee’s access and/or use of the Online Services (including but not limited to academic performance and login history) may be stored in the LMS (“Personal Data”). Each and every Liable Entity will not be liable in any capacity (including whether in contract, tort (including negligence), breach of law, breach of trust, breach of duty, in equity, under an indemnity or otherwise) for any loss of or unauthorised access to and use of this Personal Data by any third parties. The Licensee will fully indemnify and hold each and every Liable Entity harmless for any such unauthorised access to and use of the Personal Data by any third parties. (e) You hereby consent to the disclosure of some or all of your Personal Data to your institution or organization of study or employment or to any other third parties who you may have identified as being associated with whilst you were progressing through the license purchase process from the Website or otherwise.
8. UPDATES AND NEW RELEASES The Licensor is under no obligation under this Agreement to provide updates or new releases of the Online Services to the Licensee. The Licensor may (solely at its own discretion and at any time) make updates or new releases available to the Licensee from time to time at no charge or for a fee. The Licensor reserves the right to update or alter the Online Services at any time. Updates and new releases may correct or avoid current or future bugs, errors or omissions in the Online Services or enhance the Online Services in other ways.
9. IMPLIED TERMS (a) Subject to clause 9(b), any condition or warranty which would otherwise be implied in this Agreement is hereby excluded. (b) Where legislation implies in this Agreement any condition or warranty, and that legislation avoids or prohibits provisions in a contract excluding or modifying the application of or exercise of or liability under such condition or warranty, the condition or warranty shall be deemed to be included in this Agreement. However, the liability of all Liable Entities for any breach of such condition or warranty shall be limited, at the option of the Licensor, to one or more of the following: (i) the replacement of goods to which the breach relates or the supply of equivalent goods or the resupply of the relevant services or the resupply of equivalent services; (ii) the repair of such goods; (iii) the payment of the cost of replacing the goods or of acquiring equivalent goods or of obtaining equivalent services; or (iv) the payment of the cost of having the goods repaired.
10. WARRANTIES AND LIABILITIES (a) The Licensee acknowledges that the Online Services cannot be guaranteed error-free and further acknowledges that the existence of any such errors shall not constitute a breach of this Agreement. (b) Unauthorised access and faults in computer networks can and do occur which may result in the interception, corruption, alteration, non-delivery, incorrect delivery or loss of information transmitted electronically. Accordingly, we do not warrant that the Online Services will be available on a continuous or uninterrupted basis or that the Online Services will provide a secure or confidential means of communication, or that the data transmitted or received by the Licensee using the Online Services will be accurate or virus free. (c) Subject to clause 9(b), each and every Liable Entity shall be under no liability to the Licensee or any other person, whether in contract, tort (including negligence), breach of law, breach of trust, breach of duty, in equity, under an indemnity or otherwise, in respect of any loss or damage (including loss of profits, loss of savings, loss by reason of shutdown or non-operation, loss of revenue, loss of or damage to data, reputational damage or for any consequential, indirect, punitive or exemplary loss or damages) which may be suffered or incurred or which may arise directly or indirectly in connection with the Online Services or in respect of a failure or omission on our part to comply with our obligations under this Agreement, even if the loss or damage was reasonably foreseeable or any Liable Entity was aware of the possibility that such loss or damage could occur. (d) The Licensee warrants that it has not relied on any representations made by any Liable Entity or upon descriptions, illustrations or specifications contained in any document including catalogues or publicity material produced by any Liable Entity. (e) The Licensee acknowledges that to the extent a Liable Entity has made any representations, the Licensee has been provided with an opportunity to independently verify the accuracy of that representation. (f) The Licensee shall at all times indemnify and hold harmless each and every Liable Entity (“those indemnified”) from and against any loss (including reasonable costs and expenses) or liability reasonably incurred or suffered by any of those indemnified howsoever arising in connection with your Access to or attempted Access to the Online Services or otherwise in connection with this Agreement. (g) Except as provided in clause 9(b) or 10(h)(ii), if any or all Liable Entities are liable to the Licensee notwithstanding the provisions of this Agreement, then the total aggregate liability of all Liable Entities to the Licensee shall be limited to an amount of $200 (Australian Dollars), irrespective of whether such liability arises in contract, tort (including negligence), breach of law, breach of trust, breach of duty, in equity, under an indemnity or otherwise. (h) Nothing in this Agreement (i) implies that any Liable Entity assumes any liability on behalf of any other Liable Entity; and (ii) shall limit a Liable Entity’s liability: (A) which cannot be limited as a matter of law; (B) which arises due to the Liable Entity’s gross negligence or willful misconduct; or (C) for any amount which the Liable Entity has been able to recover from an insurer in respect of that liability. (i) The parties acknowledge that these limitations and exclusions of liability are reasonable in the context of the arrangements taken as a whole. (j) The Liable Entities shall not be liable for any claim made more than 3 months after accrual of the cause of action in question. (k) The Licensee shall accept sole responsibility for and the Liable Entities shall not be liable for the use of the Online Services by the Licensee its agents and employees and the Licensee shall hold each and every Liable Entity harmless and fully indemnified against any claims, costs, damages, loss and liabilities arising out of any such use. (l) The Licensee acknowledges that the Online Services may not be operable on some operating systems or browsers and in particular may not operate on older or outdated versions of browsers and operating systems.
11. DISCLAIMER (a) The Licensee acknowledges that each and every Liable Entity disclaims any liability for the accuracy and completeness of the information in the Online Services and the Licensee agrees to enter into this Agreement subject to that disclaimer. (b) The Licensee acknowledges that the Binding Operation of these license Terms and Conditions, stated in bold at the top of this Agreement, forms part of this Agreement.
12. TERMINATION (a) Without limiting the generality of any other clause in this Agreement, the Licensor may terminate this Agreement immediately by notice if: (i) the Licensee is in breach of any term of this Agreement; (ii) the Licensee for any reason loses custody of the Online Services; (iii) the Licensee becomes, threatens or resolves to become or is in jeopardy of becoming subject to any form of insolvency administration; (iv) the Licensee, being a partnership, dissolves, threatens or resolves to dissolve or is in jeopardy of dissolving; (v) the Licensee, being a natural person, dies; or (vi) the Licensee ceases or threatens to cease conducting its business in the normal manner. (b) If notice is given to the Licensee pursuant to clause 12(a), the Licensor may, in addition to terminating the Agreement: (i) suspend or terminate any access to the Online Services; (ii) retain any moneys or License Fees paid by or on behalf of the Licensee; (iii) charge a reasonable sum for work performed in respect of which work no sum has been previously charged; (iv) be regarded as discharged from any further obligations under this Agreement; and (v) pursue any additional or alternative remedies provided by law. (c) In the event of the expiration or termination of this Agreement or of expiration or termination of the license or of expiration or termination of the Initial Term or any Extended Term, the Licensee will cease to be able to Access the Online Services and any Personal Data associated with the Licensee may (at the sole discretion of the Licensor) be irreversibly deleted. We have no obligation (at any time at all) to provide you with copies of your Personal Data. (d) The Licensor is not obliged to advise or notify the Licensee of the termination of the license.
13. ENTIRE AGREEMENT This Agreement constitutes the entire agreement between the parties relating to its subject matter and supersedes all other prior representations, agreements, statements and understandings, whether verbal or in writing (apart from any Other Terms, which shall apply as specified above).
14. ASSIGNMENT AND NOVATION The benefit of this Agreement shall not be assigned by the Licensee without the Licensor’s written consent. The Licensor may consent to the assignment or novation of this Agreement by the Licensee subject to such conditions as it chooses to impose. The Licensor may assign or novate this Agreement.
15. WAIVER (a) No right under this Agreement shall be deemed to be waived except by notice in writing signed by the party making the waiver. (b) A waiver made by the Licensor pursuant to clause 15(a) will not prejudice its rights in respect of any subsequent breach of the Agreement by the Licensee. (c) Subject to clause 15(a), any failure by the Licensor to enforce any clause of this Agreement, or any forbearance, delay or indulgence granted by the Licensor to the Licensee, will not be construed as a waiver of the Licensor’s rights under this Agreement.
16. REVISION OF TERMS The Licensor may revise these terms at any time by written notice (including notice provided on the Website) and you will be bound by such revisions from the date on which the revisions take effect.
17. LICENSOR’S RIGHTS Any express statement of a right of the Licensor (or a Liable Entity) under this Agreement is without prejudice to any other right of the Licensor (or the Liable Entity) expressly stated in this Agreement or existing at law.
18. SURVIVAL OF AGREEMENT (a) Subject to any provision to the contrary, this Agreement shall enure to the benefit of and be binding upon the parties and their successors, trustees, permitted assigns or receivers but shall not enure to the benefit of any other persons. (b) The covenants, conditions and provisions of this Agreement that are capable of having effect after the expiration of the Agreement shall remain in full force and effect following the expiration of the Agreement.
19. SEVERABILITY If any provision of this Agreement is held invalid, unenforceable or illegal for any reason, the Agreement shall remain otherwise in full force apart from such provisions which shall be deemed deleted.
20. GOVERNING LAW The Licensee acknowledges that Online Services are provided from facilities located in Australia. Access to the Online Services and this Agreement shall be governed by and construed in accordance with the laws in force in the State of South Australia. By seeking Access or registering to Access the Online Services the Licensee irrevocably submits to the exclusive jurisdiction of the Courts of the State of South Australia in respect of all matters arising under or in connection with this Agreement.