eLearning Subscription Terms and Conditions

This agreement is between EQI (“us”, “we”) and the Subscriber (“you”) and governs the supply of an eLearning content subscription to you. By ticking the box marked ‘I accept’ or otherwise indicating acceptance through digital conduct, you agree to be bound by the terms of this agreement.

1. Term

1.1. This agreement will begin when you accept its terms, will continue for the Access Period and will then expire.

2. What’s Included

2.1. A purchase of an eLearning subscription through our website entitles Users to access the Content selected at checkout for the Access Period as set in this agreement.

3. Access

3.1. Once you’ve completed your purchase (by accepting these terms and paying us  the Subscription Fees), you will be directed to add Users in your account. You can do this by manually adding each User’s first and last name and their email address, or by uploading a .csv file with this information using the template provided, to the Group Management page (up to the total number of users you have paid Subscription Fees for).

3.2. You do not need to upload all Users at once. You may upload Users in batches via the Group Management page. The Group Management function must not be used to allow more than the agreed number of Users to access the Content. Accordingly, you cannot delete a User after they have accessed the Content to register a different User.

3.3. Users will then receive a welcome email from equalityatwork@equalityinstitute.org with their login information and instructions to access the Content.

3.4. The Access Period for all Users starts on the Subscription Start Date and is irrespective of the date a User is uploaded or the date they access the Content.

3.5. User accounts cannot be shared or transferred by Personnel. You must not cause or permit this to happen. 

3.6. You and each User are responsible for protecting the security of User accounts. You will let us know as soon as possible if you suspect that a User account has been compromised.

3.7. Any issues with accessing the Content should be directed to our support team at helpdesk@equalityinstitute.org.

4. Payment

4.1. You will pay us the Subscription Fees as set out on our website at the time of completing your purchase. You must also pay us GST on the Subscription Fees as set out on the checkout page.

4.2. Subscription Fees must be paid in full before access will be granted to any User.

4.3. You can pay us using any payment method available to you during the checkout process. If we use a third-party payment provider (such as PayPal or Stripe), your use of the service is subject to the provider’s own terms and conditions.

4.4. You will not be entitled to a refund or credit if any User does not access the Content.

Failure to Make Payment

4.5. If a payment of Subscription Fees fails or is returned to you then (in addition to all other remedies that may be available to us):

1. we may charge interest on any outstanding amount at the rate of 1.5% per month;
2. you will reimburse us immediately on demand for all costs, charges, expenses which we incur or become liable to pay in collecting any late payments or interest, including legal fees, court costs, and collection agency fees; and
3. we may suspend Users’ access to the Content until you’ve paid us all outstanding amounts (and any interest or costs claimed under this clause). We will not be liable to you or any other person if we suspend access under this clause.

5. Ownership of Intellectual Property

5.1. All right, title, and interest, including all Intellectual Property Rights, in and to the Content are the sole property of EQI.

5.2. All right, title, and interest, including all Intellectual Property Rights, in and to any software we use to make the Content available to you are expressly reserved.

5.3. Nothing in this agreement will cause any Intellectual Property Rights in or to the Content or Software to transfer to or vest in you or any User.

6. Intellectual Property Licence

6.1. As long as you and your Users comply with this agreement, We will grant each User a licence to access the Content for the Access Period. This licence is:

1. worldwide (content can be accessed no matter where they are the world),
2. revocable (can be taken back by us, in circumstances set out in this agreement),
3. non-exclusive (meaning we can licence others to access the Content simultaneously),
4. non-sublicensable (Users can’t grant any sublicences), and
5. non-transferrable (Users can’t transfer their licence to any other person).

7. Subscriber Warranties

7.1. We need you to make certain promises to us so that we can provide you with access to the Content. These promises are called warranties. If you breach a warranty, we may be entitled to damages for loss we suffer by relying on the warranty. In making the warranties set out in this clause, you understand that we are relying on them and that we may suffer loss and damage if you breach them.

7.2. You warrant to us:

1. You are not an existing user or customer of Go1, or a Go1 Content Provider or a Go1 Distribution Partner. 
2. You will not attempt to register a person as a User if they are not your Personnel.  
3. You are not a Restricted Person and you will not attempt to register or otherwise provide access to Content to any person who is a Restricted Person.  
4. If you or any User becomes a Restricted Person during the Term, you will tell us in writing within 24 hours. You understand and agree that we may modify, reduce or terminate access to the Content for any Restricted Person and you will not be entitled to any refund, credit or other remedy if we take that action. 

8. Subscriber Responsibilities

8.1. You must make all commercially reasonable efforts to make all Users aware of the clauses of this agreement that apply to them. You are responsible for them complying with the applicable clauses. The relevant clauses are set out below:

1. Clauses 3.5, 3.6 and 3.7 which deal with access and support
2. Clause 8.2 which deals with illegal or unauthorised use.

8.2. You and your Users must not use the Content (or allow it to be used) for an illegal or unauthorised purpose.

9. Limitation of Liability

Exclusion of Warranties and Implied Terms

9.1. All Content (including any information, recommendations, resources, instruction or assistance we give you or the Users) is provided for educational, training and instructional purposes only.

9.2. We make the Content available to you, however it is up to you to satisfy yourself prior to purchase that the Content is suitable for your intended purpose and to decide if, how and when to apply anything you learn.

9.3. Any recommendations or instructions given are general in nature and are not intended to constitute or substitute for professional or medical advice.

9.4. If interaction between consumers of the Content is available (such as through forums or messaging boards), you understand and acknowledge that we do not endorse, approve or verify consumer-contributed content and you should not rely on content contributed by other consumers in any way.

9.5. The Content is as described on our website at the time of checkout. We make no warranty or representation in relation to the Content, except as specifically set out in this agreement. All implied warranties (except for any statutory warranties which we cannot exclude) and conditions are expressly excluded to the fullest extent permitted by law.

Limitation of Liability for Breach of Statutory Warranties

9.6. Nothing in this agreement is intended to override, exclude, limit or otherwise restrict any right or guarantee to which you are entitled under the Australian Consumer Law.

9.7. If you are entitled to a warranty pursuant to the Australian Consumer Law, we limit our liability to you and any other person for the breach of any such warranty to the fullest extent permissible by law, including by limiting liability under section 64A of the Australian Consumer Law to (at our sole option):

1. providing the affected services again, or
2. the cost of providing the affected services again.

Exclusion of Liability

9.8. Subject to clause 9.7, and subject to legal limitations or restrictions applicable to this transaction, we exclude all liability to you and any other person (including any User), however arising. You understand that this means you will not be able to claim losses from us (except as described in the above clauses), which may include:

1. Negligence: if we are negligent in providing the Content. We’ve considered that the most likely outcome of us being negligent in providing the Content would be unsatisfactory quality of Content and would likely entitle you to a breach of warranty claim, as set out above. We consider that the remedies for a breach of warranty claim set out above are sufficient to protect you, and it is not reasonable necessary for us to also accept liability under civil liability legislation.
2. Losses arising from your use of the Content or the use of the Content by any User: we do not control, authorise, permit or direct you or any User to use the Content in any way, so we cannot be held responsible for what you do with our Content.
3. Technical issues: access to the Content may be subject to technical issues, such as software bugs or hardware failures, that could affect the quality or availability of the resources. We will make all commercially reasonable efforts to provide uninterrupted access to the Content during the Access Period, we do not warrant or guarantee uninterrupted access.
4. User-generated content: the Content may include features that allow users to create or upload their own content, which is not within our control. We cannot be held responsible for the uploading of that content.
5. Security breaches: the Content may be vulnerable to security breaches, such as hacking or unauthorised access, which could result in the loss or theft of personal or confidential information. While we are diligent in our cyber security efforts, we do not warrant or guarantee that security incidents will not occur.

10. Assumption of Liability

10.1. You are responsible and liable for all access to and uses of the Content by your Users, even if you’ve registered them in breach of this agreement.

10.2. Without limiting the generality of clause 10.1 above, you are responsible for all acts and omissions of Users, and any act or omission by a User that would constitute a breach of this agreement if taken by you will be deemed a breach of this agreement by you.

11. Exclusion of Consequential Losses

11.1. Neither party will be liable to the other for Consequential Losses.

12. Indemnities

Indemnities given by you

12.1. You indemnify us against all Losses that we may sustain or incur as a result, whether directly or indirectly, of:

1. your or a User’s breach or non-performance of this agreement (including a warranty breach);
2. your or a User’s infringement of our Intellectual Property Rights, or the Intellectual Property Rights of a third party in connection with the Content or this agreement;
3. your or a User’s use of the Content in a way not authorised or contemplated by this agreement.

12.2. Subject to legal limitations or restrictions applicable to this transaction, if we are sued by a third party (or they threaten to sue us) because you (or a User) did (or failed to do) something referred to in the list at clause 12.1 above, then we may ask you not only to indemnify us, but to protect us from and defend us against any such claim. This may include:

1. compensating us for Losses that have already occurred or that may occur in the future;
2. taking steps to prevent harm from occurring, such as by mitigating risk or providing safeguards; and
3. providing legal representation, including lawyers’ fees and other expenses, to defend us.

12.3. If a third-party claim is made, we may instead choose to defend ourselves, however this will not limit or waive your obligation to indemnify and protect us.

12.4. If we do ask you to defend us, you agree not to settle any claim against us unless the settlement completely and forever releases us from all liability with respect to that third-party claim, or we consent to the settlement.

Indemnities given by us

12.5. We indemnify and agree to defend you against all Losses that you sustain or incur because of a third-party claim that the Content infringes or misappropriates such third party’s Intellectual Property Rights. Our obligation to indemnify you is conditional on you:

1. promptly notifying us in writing of the claim;
2. reasonably cooperating with us to defend or settle the claim; and
3. allowing us sole authority to control the defence and settlement of the claim.

13. Confidentiality

13.1. Neither party may disclose Confidential Information of the other party or relating to this agreement or the Content without the prior written consent of the other.

13.2. The obligation of confidentiality in clause ‎13.1 does not apply in the following circumstances:

1. Confidential Information is disclosed by a party to its Personnel on a need to know basis to enable them to facilitate the anticipated purposes of this agreement, provided it is marked confidential and the Personnel agree in advance in writing to keep the Confidential Information confidential; or
2. disclosure of Confidential Information is authorised or required by law to be disclosed; or
3. disclosure of Confidential Information is permitted by this agreement.

14. Privacy and Personal Information

14.1. We may collect Personal Information about you and Users. If we do so, we will do so in accordance with our Privacy Policy available on our website at https://www.equalityinstitute.org/privacy-policy.

15. Right to Suspend Access

15.1. We may suspend access to the Content as set out in this agreement.

15.2. We may temporarily suspend access to the Content for operational purposes, including, but not limited to, updates, maintenance, repairs or installation of upgrades to software used to make the Content available.  Such suspensions do not constitute a breach of this agreement. 

15.3. We do not warrant or guarantee that your access to the Content will be uninterrupted or free from technical errors and/or bugs. 

15.4. You will not be entitled to any refund, credit or other remedy solely for a period of suspension anticipated by this clause.

16. Terminating this agreement

Termination for breach

16.1. A party may terminate this agreement immediately on written notice to the other party if it commits a material breach of this agreement and:

1. it is not possible to rectify the breach; or
2. the other party fails to remedy the breach within the period stated in a notice given to them requiring them to rectify the breach (provided that the period is reasonable).

16.2. For the purposes of clause 16.1, a material breach includes (but is not limited to):

1. sharing or transferring of accounts used to access Content;
2. infringing of Intellectual Property Rights by either party;
3. breaching a warranty given at clause 7;
4. using of the Content for an illegal or unauthorised purpose;
5. failing to provide access to the Content for an unreasonable period, other than temporary outages or suspensions anticipated by this agreement.

16.3. We will not provide any refund, credit or other compensation if we terminate this agreement due to your breach.

16.4. Termination by us under this clause is without prejudice to any other rights we may have in respect of the breach, such as a right to claim damages or call on the indemnity given by you in this agreement.

Termination due to Event of Default

16.5. Either party may terminate this agreement immediately, by giving notice in writing to the other Party if there is an Event of Default relating to the other Party.

16.6. For the purposes of clause 16.5, Event of Default means the occurrence of any of the following events:

1. any fact, matter or circumstance represented or warranted by a Party is or is later proven to be false, misleading or inaccurate when made;
2. death of a party;
3. a party being declared a bankrupt;
4. a party suspending payment of debts generally, ceasing to carry on business or threatening to cease to carry on business, becoming insolvent, making a general assignment for the benefit of creditors, suffering or permitting the appointment of a receiver, administrator, trustee, liquidator, controller, manager or similar officer for its business or assets, initiating or becoming subject to any proceeding under any applicable bankruptcy or insolvency law, or winding up or liquidating its business assets, or any analogous event or proceeding.

Consequences of Termination

16.7. If this agreement is terminated:

1. the licence granted by clause 6.1 is automatically revoked; and
2. all rights and obligations accrued up to the date of the termination are not affected.

16.8. The following clauses survive termination or expiry of this agreement:

1. clause 5 (Ownership of Intellectual Property)
2. clause 9 (Limitation of Liability)
3. clause 10 (Assumption of Liability)
4. clause 11 (Exclusion of Consequential Losses)
5. clause 12 (Indemnities)
6. clause 13 (Confidentiality)
7. clause 18 (Dispute Resolution)
8. clause 20 (Governing Law and Jurisdiction).

17. Amendment

17.1. This agreement can only be amended by agreement of the parties in writing (including via email).

18. Dispute Resolution

18.1. If a dispute arises between the parties, the party claiming the dispute must not commence any court or arbitration proceedings (except where they seek urgent interlocutory relief), unless they have first complied with this clause.

18.2. The party claiming the dispute must first inform the other party in writing of the following:

1. the nature of the dispute;
2. the outcome they desire to resolve the dispute, and
3. the action they believe will settle the dispute.

18.3. On receipt of the notice by the other party, both parties will make every effort to resolve the dispute by mutual negotiation within 2 weeks.

18.4. If the parties are unable to resolve the dispute in that time, the parties must agree on selection of a mediator (if the parties are unable to agree, they agree to request that the President of the Law Society of Victoria appoint a mediator).

18.5. The parties agree to participate in virtual mediation unless virtual mediation is not available or it is impracticable or unreasonable for a party to attend virtually, in which case the mediation must be held in the capital city of Victoria, unless otherwise agreed between the parties in writing.

18.6. The parties will be equally liable for the fees and reasonable expenses of the mediator and the cost of the venue of the mediation (if applicable), to be paid in advance. The parties must each pay their own costs associated with attending the mediation.

18.7. All communications made by the parties arising out of this dispute resolution clause are confidential and, subject to legal limitations or restrictions applicable to this transaction, must be treated as “without prejudice” negotiations for the purpose of applicable laws of evidence.

19. Force Majeure

19.1. Neither party will be liable to the other or deemed to have breached this agreement, for any failure or delay in performing its obligations under this agreement if and to the extent such failure or delay is caused by a Force Majeure Event.

19.2. For the purposes of clause 19.1, Force Majeure Event means any event or circumstance beyond the party’s reasonable control, including an act of god, strike, war, flood, fire, earthquake, explosion, extreme weather event, natural disaster, pandemic, epidemic, terrorism, invasion, riot or other civil unrest, labour stoppages or slowdowns or other industrial disturbances, unavailability or delay in availability of critical infrastructure, government shutdown, lockdown or similar restrictions, passage of law or any action taken by a governmental or public authority, including imposing an embargo.

20. Governing Law and Jurisdiction

20.1. The law of Victoria, Australia governs this agreement and the parties submit to the non-exclusive jurisdiction of the courts of Victoria, Australia.

21. General

Time of the essence

21.1. Time is of the essence in this agreement. No extension or variation of this agreement will operate as a waiver of this provision.

Assignment

21.2. Neither party may assign, novate, sub-contract or otherwise transfer its rights and obligations under this agreement without the prior written consent of the other party, which must not be unreasonably withheld.

Relationship of Parties

21.3. The parties acknowledge that this agreement is intended as an agreement for the provision of services and creates the relationship of principal and contractor and not any other relationship and, in particular, not the relationship of employer and employee, principal and agent or the relationship of partnership.

Entire Agreement

21.4. This agreement is the entire agreement and understanding between the parties on everything connected with the subject matter of this agreement, and supersedes any prior understanding, arrangement, representation or agreements between the parties as to the subject matter contained in this agreement.

Severance

21.5. If anything in this agreement is unenforceable, illegal or void, it is severed, and the rest of the agreement remains in force.

Waiver

21.6. A party’s failure or delay to exercise a power or right does not operate as a waiver of that power or right. Any waiver by any party to a breach of this agreement will not be deemed to be a waiver of a subsequent breach of the same or of a different kind.

Notices

21.7. A notice required to be given to a party under this agreement must be in writing and delivered to that party in one of the following ways:

1. delivered personally;
2. posted to their last-notified postal address, when it will be treated as having been received on the second Business Day after posting; or
3. sent by email to their last-notified email address, when it will be treated as received when it enters the recipient’s information system or otherwise when the recipient confirms receipt, whichever occurs first.

22. Definitions

Capitalised words in this agreement have the meaning set out in this clause, or as set out in the Schedule, unless the context requires otherwise:

Australian Consumer Law means Schedule 2 of the Competition and Consumer Act 2010 (Cth).

Access Period means 12 calendar months from the Subscription Start Date.

Business Day means a day on which banks are open for business in Melbourne, other than a Saturday, Sunday or public holiday.

Confidential Information means information that:

1. is by its nature confidential;
2. is designated by a party as confidential; or
3. a party knows (or ought reasonably to know) is confidential; or
4. is agreed in writing between the parties as constituting “Confidential Information” for the purposes of this agreement, and includes without limitation the terms of this agreement and all information about EQI, its employees, agents, research, property, policies and operations which is made available or which becomes known during the Term of this agreement or as a result of executing this agreement, but does not include information which:
5. is or becomes public knowledge other than by breach of this agreement or any other confidentiality obligation; or
6. information in a party’s possession without restriction in relation to disclosure before it is received from the other party in connection with this agreement; or
7. information independently developed or acquired by a party, other than in connection with this agreement.

Content means the elearning materials developed by EQI and made available by EQI for viewing on a subscription basis as set out on its website and as described in our invoice.

Consequential Loss means indirect or consequential loss or damage, including loss of business profits, revenue, opportunities or reputational damage.

EQI means Equal Research Pty Ltd trading as The Equality Institute (ABN 66 606 843 163) of 3 Hawking Street, Preston, Victoria, Australia, 3072.

Go1 means GO1 Pty Limited ABN (91 134 998 020), the provider of web-based learning resources and learning management systems as described at https://www.go1.com/.

Go1 Content Provider means an organisation or individual (or their affiliate) listed on the Go1 Content Provider page, as amended from time to time, available at https://www.go1.com/en-au/go1-contentpartners.

Go1 Distribution Partner means an organisation or individual (or their affiliate) listed on the Go1 Distribution Partner page, as amended from time to time, available at https://www.go1.com/en-au/go1-partnersand-other-parties.

Intellectual Property Rights means intellectual property rights in any country including, without limitation:

1. all copyright and neighbouring rights, all rights in relation to inventions (including patent rights), trade and service marks (including goodwill in those marks), designs, domain names and trade names, Know-How, rights in circuit layouts, and all other rights resulting from intellectual activity in the industrial, scientific, literary and artistic field;
2. any application or right to apply for registration of any of the rights referred to in paragraph (a); and
3. all rights of a similar nature to any of the rights in paragraphs (a) and (b) which may subsist anywhere in the world.

Losses means expenses, losses, damages, liabilities, and costs (including solicitor’s fees and court costs) but does not include Consequential Loss.

Parties means the parties to this agreement, being EQI and the Subscriber.

Personnel means, in relation to a party, that party’s employees, agents, permitted assigns and sub-contractors.

Restricted Person means a person who is:

1. located in, a national of or an entity existing under the laws of Cuba, Iran, Sudan, Syria, or any other country with which U.S. persons are prohibited from engaging in transactions, as may be determined from time to time by the U.S. Treasury Department;
2. designated as a Specially Designated National or institution of primary money laundering concern by the U.S. Treasury Department;
3. listed on the Denied Persons List or Entity List by the U.S. Commerce Department, or any other restricted party lists;
4. engaged in nuclear, missile, chemical, or biological weapons activities to which U.S. persons may not contribute without a U.S. Government license; or
5. owned, controlled, or acting on behalf of a person falling within any of the categories of person in (i) to (iv) inclusive.

Subscriber means the person or organisation completing a purchase to access our Content.

Subscription Fees means the fees charged by EQI for access to the Content per User (up to 100 Users), as set out on our website at the time of completing your purchase.

Subscription Start Date means the date that you complete your purchase by accepting these terms and paying us the Subscription Fees.

User means a member of the Subscriber’s Personnel who the Subscriber has permitted to access and view the Content by providing EQI with the person’s name and email address as contemplated by this agreement.

Works means any works or materials to which Intellectual Property Rights attach.

23. Interpretation

In the interpretation of this agreement:

23.1. Words such as including and includes are not words of limitation;

23.2. No provision will be construed to the disadvantage of a party merely because that party was responsible for including the provision in this agreement;

23.3. References to legislation or provisions of legislation include changes or re-enactments of the legislation and statutory instruments and regulations issued under the legislation;

23.4. Words denoting the singular include the plural and vice versa, words denoting individuals or persons include bodies corporate and vice versa, references to documents or agreements also mean those documents or agreements as changed, novated or replaced, and words denoting one gender include all genders;

23.5. Headings are inserted for the convenience of the parties only and are not to be considered when interpreting this agreement;

23.6. Grammatical forms of defined words or phrases have corresponding meanings;

23.7. References to dates and times are by reference to Melbourne, Victoria;

23.8. All monetary amounts are expressed in Australian Dollars ($AUD);

23.9. If the day on or by which anything is to be done is a Saturday, a Sunday or a public holiday in the place in which it is to be done, then it must be done on the next Business Day;

23.10. References to a party are intended to bind their executors, administrators and permitted transferees; and

23.11. Obligations under this agreement affecting more than one party bind them jointly and each of them severally.