2.2 Grant of Licence

Cultural Infusion hereby grants to the Customer a non-exclusive, non-assignable, worldwide license to use the Platform by means of the Website and/or Customer Dashboard for the internal business purposes of the Customer subject to these Terms. 

2.3 Limitations and Prohibitions 

The licence granted by Cultural Infusion to the Customer under Clause 2.2 is subject to the following limitations and prohibitions: 

(a)  the Customer Dashboard may only be used by Authorised Users of the Customer; 

(b)  the Customer shall not and shall not permit others to:   

     (i)     copy/republish the Services or Platform or sub-license its right to access the Services;  
     (ii)    make the Customer Dashboard available to any person other than its Authorised Users;  
     (iii)   modify or create derivative works based upon the Services or Documentation; 
     (iv)   emove, modify or obscure any copyright, trademark or other proprietary notices contained in the software used to provide the Services or in the Documentation; 
     (v)    reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code of the Software used to provide the Services, except and only to the extent such activity is expressly permitted by Applicable Law; or  
    (vi)   access the Platform or Services or use the Documentation in order to build a Competing Product.  

2.4 Service Reselling 

The Customer may not reproduce, duplicate, copy, sell, resell or exploit any portion of the Website, Platform or any Service without Cultural Infusion’s express prior written permission, granted either directly or through a Provider approved reseller programme.

2.5 Licence from Customer 

Subject to these Terms, the Customer shall grant to Cultural Infusion a perpetual, non-exclusive and non-transferable license to copy, store, configure, display and transmit Customer Data solely to the extent necessary to provide the Services to the Customer and for the purposes set out in clause 9.8 of these Terms. 

3.2 Service Levels

(a)   Cultural Infusion shall use reasonable endeavours to maintain the availability of the Services to the Customer, but cannot guarantee the continuous operation of or access to our Services. We will inform you of any planned updates or changes that may effect the availability or functionality of our services. 

(b) Downtime caused directly or indirectly by any of the following shall not be considered a breach of these Terms and shall not be calculated as downtime for the purpose of calculating the availability of the Services: 
         (i)     a Force Majeure Event; 
         (ii)    a fault or failure of the internet or any public telecommunications network; 
         (iii)   a fault or failure of the Customer's computer systems or networks; 
         (iv)   any breach by the Customer of this Agreement; or 
         (v)   scheduled maintenance carried out in accordance with this Agreement. 

4.1 Assistance.  

The Customer shall provide commercially reasonable information and assistance to the Provider to enable it to deliver the Services. The Customer acknowledges that the Provider’s ability to deliver the Services in the manner provided in these Terms may depend upon the accuracy and timeliness of such information and assistance. 

4.2 Appointment of Authorised Users. 

The Customer may appoint and authorise an employee or officer of the Customer to act as the Authorised Users, whose acts and omissions shall be the sole responsibility of the Customer. The Customer must ensure that:  

(a)   each Authorised User is under confidentiality obligations with the Customer at least as restrictive as those in this Agreement; 

(b)   each Authorised User is appropriately trained in the application of Applicable Laws and has agreed to the terms of the Provider’s Acceptable Use Policy;

(c)   it has implemented and maintains reasonable security measures relating to the Access Credentials to ensure that no unauthorised person or application may gain access to the Services;

(d)   each Authorised User complies with these Terms. 

4.3 Unauthorised Use 

The Customer shall notify the Provider immediately of any unauthorised use of any Access Credentials or any other known or suspected breach of security and use reasonable efforts to stop any unauthorised use of the Services that it knows or suspects is occurring.

4.4 Age Requirements

The Platform is intended for use by persons over the age of 18. The Customer is responsible for ensuring that each Authorised User and Participant are at least 18 years old.

4.5 Compliance with Laws. 

(a)    Given that the Service can be configured and used in ways that do not comply with Applicable Laws, it is the Customer’s sole responsibility to seek independent legal advice on its proposed use of the Service to ensure it complies with Applicable Laws. The Provider shall not be responsible or liable for a Customer’s failure comply with Applicable Law. Cultural Infusion does not provide legal advice to the Customer regarding its legal or data privacy obligations under any Applicable Law and the Customer acknowledges that: 

         (i)    the Customer shall configure the Customer Dashboard and the Platform in a manner which complies with all Applicable Laws or, where such configuration is not possible, immediately inform the Provider and cease using the Platform; 
         (ii)    Cultural Infusion exercises no control over the content of the information transmitted by the Customer, its Authorised Users or the Participants; 
         (iii)   any decisions the Customer may make regarding the employment, promotion, advancement, termination or compensation of any employee or Authorised user of the Service are the Customer’s sole responsibility;  
         (iv)   it shall be solely responsible for the privacy, collection, use, retention and processing of Customer or Participant data provided to it by the Provider, and for providing any and all notices and information to your employees regarding the foregoing.  

4.6 Access to Code 

The Customer has no right to access the software code (including object code, intermediate code and source code) of the Platform, either during or after the Term. 

5.1 Accounts

(a)    Certain parts of the Platform, including the ability to purchase Services and access certain features of the Customer Dashboard, may require an Account in order to access them.  

(b)    By creating an account on behalf of a Customer you represent and warrant that:

         (i)      you are at least 18 years of age and are duly authorised by the Customer to bind it to these Terms;  
         (ii)     the information you provide in registering the account is accurate and complete;  
         (iii)     the password you have chosen for your account is strong, consisting of a combination of lowercase and uppercase letters, number and symbols; and 
         (iv)      you will keep the password of your account secure and only share it with Authorised Users of the Customer. 

(c)     Any personal information provided in your Account will be collected, used and held in accordance with our Privacy Policy.

(d)   If you wish to close your Account you may do so at any time. Closing your Account will result in the revocation of your access to any paid Services or features of the Platform that require an Account for access. Closing your Account will not affect your obligation to make payment for any service provided up to the date of cancellation. 

5.2 Fees

(a)   Cultural Infusion may charge you for the use of our Services and access to certain features of the Customer Dashboard. In some cases, you may also request supplemental Services from Cultural Infusion such as training or custom reports, we may also charge you for such supplemental Services. 

(b)  The fees we charge Customers for using our Services will be advised to you at the time of your account creation, and/or at the time you request further features or supplemental Services from us.  

(c)  By clicking on the “Purchase”, “Agree” or similar button or checkbox that is presented to you at the time of placing an Order, or by using or accessing certain Services or portions of the Customer Dashboard, you confirm that you are bound by this Agreement and agree to pay any fee presented to you for the relevant product or service. 

(d)  We may change our fees from time to time by posting the proposed changes on the Platform thirty (30) days in advance. If you do not agree to such change to the applicable fees, you may close your account prior to the expiration of this period of notice. 

(e)  If you have created an account, you must have a payment method on file and by creating such account you agree to pay all fees and applicable taxes associated with your use of our Services by the payment due date. If your payment method fails or your account is past due, we may place restrictions on your account, or may collect amounts owed. 

5.3 Additional Services

(a)  Where the Customer elects to utilize additional services during the Term, additional fees may be applicable as set out in your Order or the Fee Schedule. These additional fees will be prorated for the unexpired portion of the then current Term and shall renew automatically or terminate on the same date as the underlying Agreement. 

(b)  If the Provider provides additional professional services during the term which are not set out in the Order, the Provider and Customer will enter into a further service Order describing the relevant additional Services, which shall be governed by this Agreement. 

(c)  Nothing in this subsection obligates the Provider to provide additional services, except as set out in this Agreement or as set out in an Order. 

5.4 Special Offers

Any special offers, discounts, features and other benefits may be modified will expire at the anniversary of the Initial Term, unless expressly agreed in writing. 

5.5 Payment Methods

The Customer must pay the Fees by credit card, direct debit or bank transfer (using such payment details as are notified by the Provider to the Customer from time to time). No surcharge applies to payments made by Customers in Australia. Where the Customer is located outside Australia, payment processing fees charged by Stripe or other online payment processors may apply and will be added to the amount payable. 

5.6 Interest on Overdue Fees.  

If the Customer does not pay any amount properly due to the Provider under this Agreement, the Provider may charge the Customer interest on the overdue amount at the rate equal to 1% per month (12.68% annually) or the maximum allowed by law, whichever is less. Interest will accrue daily until the date of actual payment and be compounded at the end of each calendar month.  

5.7 Variation to Fees

The Provider may elect to vary any element of the Fees by giving to the Customer not less than 60 days' written notice of the variation expiring on any anniversary of the date of execution of this Agreement. 

5.8 Taxes

All amounts stated in or in relation to this Agreement are, unless the context requires otherwise, stated exclusive of any applicable value added taxes, which will be added to those amounts and payable by the Customer to the Provider.

5.9 Order Process

No order shall be binding upon Cultural Infusion until we have provided our acceptance, including by confirmation email, providing access to the product or service or making access credentials/keys available to the Customer.

5.10 Refunds

All fees and expenses are non-refundable, except as provided for in these Terms or in the terms of a particular order. 

6.1 Title to Software

Title to all intellectual property rights, including patent, copyright, trademark, trade secret rights, code, designs and materials developed and provided by Cultural Infusion (including any modifications, enhancements, versions, releases, or correction levels to Service and materials) in the Platform shall remain exclusively the property of Cultural Infusion. Cultural Infusion does not transfer or assign any of its intellectual property rights to you. 

6.2 Title to Customer Data

All intellectual property rights in the Customer Data shall be the property of the Customer, and the Provider perpetually and irrevocably assigns and transfers by way of present assignment of future rights and with full title guarantee all intellectual property rights to all Customer Data. 

6.3 Title to Data Enhancements

(a)    You acknowledge that all reports, summaries and other related information generated by the Platform or the Provider remain the property of the Provider (“Data Enhancements”).  

(b)    The Customer must acknowledge the Provider as the source of any Data Enhancements and under no circumstances represent that these enhancements have been created by the Customer.  

(c)    The Customer further agrees to only use the Data Enhancements for the sole purpose of providing a workforce strategy, planning, consulting and/or recruiting service to clients, staff and stakeholders. 

(d)    For the avoidance of doubt, internal reports, conclusions, summaries or other documents produced by the Customer shall be the property of the Customer, whether or not derived from the Data Enhancements or the Platform.  

7.1 Provider Warranties

Cultural Infusion warrants to the Customer that: 

(a)    it will provide the Services in a professional manner consistent with the general industry standards; 

(b)    it has all the rights in relation to the Platform that are necessary to grant all the rights it purports to grant under, and in accordance with, these Terms; 

(c)    it will comply with all applicable legal and regulatory requirements applying to the exercise of the Provider's rights and the fulfilment of the Provider's obligations under this Agreement; and 

(d)    the Services, when used by the Customer in accordance with this Agreement, will not infringe the Intellectual Property Rights of any person. 

7.2 Customer Warranties

The Customer represents and warrants that: 

(a)  its use of the Platform is in compliance with all Applicable Law; 

(b)  it has determined that the products provided via the Platform meet its requirements; 

(c)   its Authorised User has full power and authority to bind the Customer to these Terms;  

(d)   it shall not and it shall not permit any of its Authorised User(s) to: 

          (i)       reverse engineer, copy, decompile, replicate or create derivative works from any aspect of the Software or Platform; 
          (ii)      sublicence, resell, lease, distribute or create derivative works from, the Platform; 
          (iii)     access the Platform for the purposes of creating, developing or operating a Competing Product; 
          (iv)     remove, circumvent or otherwise interfere with security features of the Platform or features that relate to limitations on your use on the Platform; 
          (v)      modify, copy, publish, licence, sell or otherwise commercialize the materials or content of the Platform; 
          (vi)     breach or circumvent any Applicable Laws, third-party rights or our systems, policies, or determinations of your account status; 
          (vii)    use our Platform if you are not able to form legally binding contracts, including if are under 18 years old, or are suspended from using our Services; 
          (viii)   transfer your Account (or Account access) to another party without our consent; 
          (ix)     share your log in credentials with any third parties;
          (x)      distribute viruses or any other technologies that may harm Cultural Infusion or the interests of other users; 
          (xi)     use any robot, spider, scraper, data mining tools, data gathering tools, or other automated means to access our Services for any purpose, except with the prior express permission of Cultural Infusion; 
          (xii)    interfere with the functioning of the Platform, including by imposing an unreasonable or disproportionately large load on our existing infrastructure; 
          (xiii)    infringe the copyright, trademark, patent, publicity, moral, database, and/or other intellectual property rights belonging to Cultural Infusion; or
          (xiv)   harvest, collect or use information about users of Cultural Infusion without their consent. 

7.3 No Implied Warranties

The parties' warranties and representations in respect of the subject matter of this Agreement are expressly set out in this Agreement. To the maximum extent permitted by Applicable Law, no other warranties or representations will be implied into this Agreement or any related contract. 

8.1 Provider Confidentiality Obligations

Cultural Infusion must:

(a)  keep the Customer Confidential Information strictly confidential; 

(b)  not disclose the Customer Confidential Information to any person without the Customer's prior written consent; and 

(c)  use the same degree of care to protect the confidentiality of the Customer Confidential Information as the Provider uses to protect the Provider's own confidential information of a similar nature, being at least a reasonable degree of care. 

8.2 Disclosure to Authorized Users

Notwithstanding Clause 8.1, Cultural Infusion may disclose the Customer Confidential Information to its officers, employees, contractors or professional advisers who have a need to access the Customer Confidential Information for the performance of their work with respect to this Agreement and who are bound by a written agreement or professional obligation to protect the confidentiality of the Customer Confidential Information. 

8.3 Provider Disclosures

(a)  This Clause 8 imposes no obligations upon the Provider with respect to Customer Confidential Information that: 
         (i)     is known to the Provider before disclosure under this Agreement and is not subject to any other obligation of confidentiality; 
         (ii)    is or becomes publicly known through no act or default of the Provider; or 
         (iii)  is obtained by the Provider from a third party in circumstances where the Provider has no reason to believe that there has been a breach of an obligation of confidentiality. 

(b)  The restrictions in this Clause 8 do not apply to the extent that any Customer Confidential Information is required to be disclosed by any law or regulation, by any judicial or governmental order or request, or pursuant to disclosure requirements relating to the listing of the stock of the Provider on any recognized stock exchange. 

8.4 Survival of Confidentiality Obligations

The provisions of this Clause 8 shall continue in force for a period of 7 years following the termination of this Agreement, at the end of which period they will cease to have effect. 

8.5 Publicity

The Provider shall have the right to disclose the Customer’s name as a customer of the Provider, and the Customer hereby grants the Provider the right to display the Customer’s company name and logo on the Provider’s website and marketing materials during the term of this Agreement. 

8.6 Adequacy of Damages

The Parties acknowledge and agrees that due to the unique nature of Confidential Information, any breach of the confidentiality obligations in this Agreement may cause the non-breaching party irreparable harm for which an adequate remedy at law may not be available and that, therefore, the non-breaching party will be entitled to seek appropriate equitable remedies including but not limited to injunctive relief.

9.1 Application of Privacy Policy 

Any information provided by the Customer, its Authorised User(s) or any Participant shall be collected and used in accordance with the Provider’s Privacy Policy, which is incorporated by reference into these Terms.

9.2 Use of Participant Data

The Provider shall only process the Participant Data for the purposes set out in these Terms and the Privacy Policy and will hold, and will ensure that all employees, agents and suppliers will hold the Participant Data in strict confidence.

9.3 Security Measures

Cultural Infusion shall ensure that its information security program includes industry standard password protections, firewalls and anti-virus and malware protections to protect Participant Data stored on its computer systems.

9.4 Security Breaches

Cultural Infusion shall notify the Customer in writing as soon as possible (and in any event within 72 hours) whenever Cultural Infusion reasonably believes that there has been any unauthorised access, acquisition, use, disclosure or destruction of the Participant Data (“Security Breach”), and provide detailed information regarding the nature and scope of the Security Breach, the actual or potential cause of the Security Breach, and the measures being taken by Cultural Infusion to investigate. 

9.5 Ownership of Customer and Participant Data

All data stored in the Platform provided by Customer and their Participants, belongs to Customer and will only be used by Cultural Infusion to provide the Services and for the purposes set out in the Privacy Policy.  

9.6 Destruction or Return of Participant Data

After termination or expiry of this Agreement, Cultural Infusion shall (subject to clause 9.8), at the request of the Customer, delete or return all of the Participant Data to the Customer, and shall delete existing copies save to the extent that an Applicable Law requires storage of the relevant Personal Data. 

9.7 Change in Law

If any changes or prospective changes to the Data Protection Laws result or will result in one or both parties not complying with the Data Protection Laws in relation to processing of Personal Data carried out under this Agreement, then the parties shall use their best endeavours promptly to agree such variations to this Agreement as may be necessary to remedy such non-compliance. 

9.8 Retention of Anonymized Data 

Notwithstanding any other provision of this agreement, Cultural Infusion may collect and, both during and after the term of this Agreement, use data derived from Participant Data for research purposes, improvement of Cultural Infusion’s services and related purposes, provided that such data will be de-identified, anonymized and aggregated to reasonably avoid identification of a specific Customer, Authorised User or individual Participant.

10.1 Initial Term

The term of this Agreement shall begin on the Effective Date and shall continue until the expiration or termination of the term set out in the Order (the “Initial Term”) unless terminated earlier by either party as outlined in this clause 10. Where no term is specified in the Order, the Initial Term shall mean a period of 12 months commencing on the Effective Date. 

10.2 Automatic Renewal

Your Subscription will be automatically renewed and extended for the same period as the Initial Term (each a “Renewal Term”) unless either party gives written notice of termination at least thirty (30) days prior to the end of the Initial Term, or any Renewal Term, in which case the Agreement shall terminate at the expiry of the then current Initial Term or Renewal Term. Unless otherwise agreed or specified in an order a Subscription Term will automatically renew at the then current rates for:  

         (i)    if your Subscription was for a period of less than twelve (12) months, another Subscription Term of a period equal to your prior Subscription Term; or  
         (ii)  if Customer’s prior Subscription Term was for twelve (12) months or more, twelve (12) months.

Either party may elect not to renew a Subscription Term by giving notice to the other party before the end of the current Subscription Term.  The Customer must provide any notice of non-renewal through account settings in the Products or by contacting Cultural Infusion’s customer support team. 

10.3 Termination for Breach

Either party may terminate the Subscription and any applicable Order immediately upon a material breach by the other party that has not been cured within fourteen (14) days after receipt of notice of such breach.

10.4 Suspension of Service

Cultural Infusion may immediately suspend the provision of the Services and any Additional Services if: 

(a)   any amount due to be paid by the Customer to Cultural Infusion under this Agreement is overdue;  

(b)  Cultural Infusion reasonably believes that the Customer or its Authorised Users are using the Platform in a manner not contemplated by this Agreement, that may be in breach of an Applicable Law or poses a threat of disrupting other customer’s use of the Platform; or 

(c)  Cultural Infusion reasonably believes that the Customer or its Authorised Users’ use of the Services is causing immediate harm to the operations, reputation or profitability of Cultural Infusion, affecting the stability of the Platform or adversely effecting other users.  

10.5 Effect of Suspension

Suspension of the services under clause 10.4 shall not release the Customer of its payment obligations under this Agreement and the Customer agrees to indemnify and hold Cultural Infusion harmless against any liabilities, claims or expenses arising from or relating to such suspension.

11.1 Surviving Provisions

Any provisions of these Terms that impose continuing obligations on the Parties, including without limitation the parties’ respective warranty, indemnity and confidentiality obligations, survive the expiration or termination of the Contract for any reason.  

11.2 Early Termination

The Fees set out in the Order are based on Cultural Infusion’s expectation that Customer will utilise the Services for the full Initial Term or Renewal Term, and that any earlier termination of the engagement, other than for Cultural Infusion’s breach of this Agreement or with Cultural Infusion’s written consent, shall not relieve Customer’s obligation to pay for the Services for the full then-current Initial or Renewal Term and shall entitle Cultural Infusion to immediately invoice the Customer and be paid for the remainder of the then-current Term. 

11.3 Accrued Rights

Except to the extent expressly provided otherwise in this Agreement, the termination of this Agreement shall not affect the accrued rights of either party. Within 30 days following the termination of this Agreement for any reason the Customer must pay to Cultural Infusion any charges in respect of Additional Services provided to the Customer before the termination of this Agreement.

12.1 Limitations on Warranty

(a)    The Customer acknowledges that complex software is never wholly free from defects, errors, bugs and security vulnerabilities and subject to the other provisions of this Agreement, Cultural Infusion gives no warranty or representation that the Services will be wholly free from such defects, errors, bugs and security vulnerabilities.

(b)    The Customer acknowledges that Cultural Infusion will not provide any legal, financial, accountancy or taxation advice under this Agreement or in relation to the Services; and, except to the extent expressly provided otherwise in this Agreement, Cultural Infusion does not warrant or represent that the Services or the use of the Services by the Customer will not give rise to any legal liability on the part of the Customer or any other person.

12.2 Limitation and Exclusions of Liability

(a)   Nothing in this Agreement will limit or exclude any liability for death or personal injury resulting from negligence, fraud or fraudulent misrepresentation, infringement of a third party’s Intellectual Property rights, breach of the confidentiality or privacy obligations set out in clauses 8 and 9 or any liability that may not be limited or excluded under Applicable Law. 

(b)    Limitations and exclusions set out in this clause 12.2 and elsewhere in this Agreement: 
          (i)    are subject to Clause 12.2(a); and 
          (ii)  govern all liabilities arising under this Agreement or relating to the subject matter of this Agreement, including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty, except to the extent expressly provided otherwise in this Agreement.

(c)   Neither party shall be liable to the other party in respect of any losses arising out of a Force Majeure Event, loss of profits or anticipated savings, loss of revenue or income, business, contracts or opportunities, loss of use or production, any loss or corruption of any data, database or software and any special, indirect or consequential loss or damage. 

(d)   The liability of each party to the other party under this Agreement in respect of any event or series of related events shall not exceed the total amount paid and payable by the Customer to Cultural Infusion under this Agreement in the 12 month period preceding the commencement of the event or events.

(e)   The Customer’s payment obligations for fees and taxes under this Agreement shall not be limited by this clause 12. 

12.3 Indemnification by Cultural Infusion

(a)   If a third party makes a claim against Customer that the Customer’s use of the Services in accordance with this Agreement infringe any patent, copyright or trademark, or misappropriates any trade secret, Cultural Infusion shall defend Customer and its directors, officers and employees against the claim at Cultural Infusion’s expense and Cultural Infusion shall pay all losses, damages and expenses (including reasonable attorneys’ fees) finally awarded against such parties or agreed to in a written settlement agreement signed by Cultural Infusion, to the extent arising from the claim.

(b)   Cultural Infusion shall have no liability for any claim to the extent it relates to modification of the services not Authorised by Cultural Infusion or use of the Services other than in accordance with the Documentation and this Agreement.

12.4 Indemnification by the Customer

The Customer agrees to indemnify, defend and hold harmless Cultural Infusion, its affiliates, officers, directors and employees from and against any losses, costs, damages, expenses (including reasonable legal fees) or other liabilities incurred (including by virtue of settlement agreement) as a result of any third-party action, claim or demand to the extent that it relates:

(a)   to the Customer’s use or access to the Service in breach of this Agreement;

(b)   to any decision or action the Customer takes with regard to the employment of any Participant or other third party due to information made available to the Customer through the Service; 

(c)   the Customer’s violation of any rights of a third party including, without limitation, any data privacy right, employment law or other Applicable Law;

(d)   the Customer’s breach, or alleged breach of this Agreement.

12.5 Conditions for Indemnification

Indemnification under clauses 12.3 or 12.4 is conditional on the party seeking indemnification promptly notifying the other party of the claim, giving the other party sole control of the defence and settlement of the claim and providing, at the other party’s expense for out-of-pocket expenses, the assistance, information and authority reasonably requested by the other party in the defence and settlement of the claim. 

13.1 Effect of Force Majeure Event

Where a Force Majeure event(s) gives rise to a failure or delay in either party performing any obligation under this Agreement, except an obligation to make payment, that obligation will be suspended for the duration of the Force Majeure event(s). 

13.2 Duty to Notify & Mitigate

Where a party becomes aware of a Force Majeure event(s) which is likely to give rise to any failure or delay in that party performing any obligation under this Agreement, it must promptly notify the other party of the event(s), provide an estimate of the period for which such failure or delay will continue, and take reasonable steps to mitigate the effects of the Force Majeure Event. 

Cultural Infusion reserves the right to amend, alter or replace these Terms at any time. Any such changes will become binding on you upon your first use of the Platform after the changes have been implemented. You are advised to check this page from time to time and familiarize yourself with the current version of the Terms.

Any dispute, controversy or claim arising out of or relating to this contract, or the breach, termination or invalidity thereof, shall be settled by arbitration in accordance with the UNCITRAL Arbitration Rules as at present in force. The arbitration shall be administered by the Australian Centre for International Commercial Arbitration (ACICA). The appointing authority shall be ACICA. The number of arbitrators shall be one. The place of arbitration shall be Melbourne, Australia. The language to be used in the arbitral proceedings shall be English. 

16.2 Interpretation

In this Agreement the following rules of interpretation apply, unless the contrary intention appears or context otherwise requires: 

(a)  Words denoting any gender include all genders and the word ‘person’ includes any individual, corporation or other body corporate, partnership, joint venture, trust, association and any Government Agency. 

(b)  A reference to a body (other than a party to this Agreement), whether statutory or not, that ceases to exist or has its powers or functions transferred to another body is a reference to the body that replaces it or that substantially succeeds to its powers or functions.

(c)  A reference to any agreement or document (including this Agreement) includes any amendments to or replacements of that document. 

(d)  Any promise, agreement, representation or warranty given or entered into on the part of two or more persons binds them jointly and each of them severally. 

(e)  No provision of this Agreement will be construed adversely to a party because that party was responsible for the preparation of that provision or this Agreement.  

(f)  This Agreement includes all schedules, annexures, attachments and exhibits to it. 

(g)  Where a word or phrase is defined, other parts of speech and grammatical forms of that word or phrase have corresponding meanings. 

17.2 Assignment

Neither this Agreement nor any of the rights, interests or obligations under this Agreement shall be assigned, in whole or in part, by operation of law or otherwise by any of the parties without the prior written consent of the other parties, which consent shall not be unreasonably withheld. Any purported assignment without such consent shall be void. Save that this Agreement will be binding upon, inure to the benefit of the parties and their respective successors and assigns. 

17.3 Further assurances

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

17.4 Entire agreement

This Agreement contains the entire agreement between the Parties as at the date of this Agreement with respect to its subject matter and supersedes all prior agreements and understandings between the Parties in connection with it.

17.5 Amendment

This Agreement may be amended only by another agreement or deed executed by all the Parties. 

17.6 No waiver

A failure to exercise or a delay in exercising any right, power or remedy under this Agreement does not operate as a waiver. A single or partial exercise or waiver of the exercise of any right, power or remedy does not preclude any other or further exercise of that or any other right, power or remedy. A waiver is not valid or binding on the Party granting that waiver unless made in writing. 

17.7 Extent of obligations

If any payment under this Agreement becomes void by any statutory provision or otherwise, the obligations of the Party that made the payment will be taken not to have been discharged in respect of that payment and the Parties will be restored to the rights which each respectively would have had if that payment had not been made. 

17.8 Remedies cumulative

No remedy conferred by any of the provisions of this Agreement is intended to be exclusive of any other remedy which is otherwise available at law, in equity, by statute or otherwise, and each other remedy shall be cumulative. The election of any one or more of such remedies by any of the Parties shall not constitute a waiver by such Party of the right to pursue any other available remedies. 

17.9 No merger

The rights and obligations of the Parties will not merge on the completion of any transaction contemplated by this Agreement. They will survive the execution and delivery of any assignment or other document entered into for the purpose of implementing a transaction. 

17.10 Survival of representations and warranties

All representations and warranties in this Agreement will survive the execution and delivery of this Agreement and the completion of transactions contemplated by it. 

17.11 Governing law

This Agreement is governed by the laws of State of Victoria, Australia. Subject to clause 15, any legal action or proceedings which may be brought with respect to this Agreement or any transaction contemplated by this Agreement (each, a Relevant Action), each Party irrevocably and unconditionally submits to and accepts the non‑exclusive jurisdiction of courts exercising jurisdiction in the State of Victoria in connection with matters concerning this Agreement. 

17.12 Counterparts

This Agreement may be executed in any number of counterparts, each of which when so executed shall be an original and all counterparts together will constitute one instrument. 

18.2 Order of priority 

If there is an inconsistency, the following prevails in this order: (a) the Special Conditions in the Order; (b) for Membership and Courses, clauses 18 to 20; (c) the rest of these Terms; and (d) the rest of the Order. 

18.3 Online acceptance 

If the Customer accepts these Terms online when opening an account, they apply on the same basis as if they were signed. If the Customer has also signed an Order, the signed Order and Special Conditions prevail over any inconsistent online terms. A change to clauses 18 to 20 under clause 14 does not reduce what the Customer is entitled to receive for Membership or Courses already paid for in the then-current term, unless the change is required by Applicable Law. 

18.4 What Membership includes

(a)  Membership gives the Customer’s Member Users access to the Member Platform at the level stated in the Order. Depending on the level, this may include research, toolkits, guides, events, Courses made available through the Member Platform (Access Model A in clause 19.1) and limited access to certain Atlas surveys as specified in the Order. Full Membership includes all of these. 

(b)  Where the Customer subscribes to Atlas, Membership is included for the term of the Atlas subscription at the level stated in the Order. Unless the Special Conditions say otherwise, that level is Full Membership.

(c)  Membership does not include any Atlas features beyond those stated in the Order. Any wider Atlas access for a Member applies only if the Special Conditions say so, and is governed by clauses 2 to 4 and the rest of these Terms. 

18.5 Member Users 

Access to Membership is limited to the number of named Member Users stated in the Order to access the Member platform and the named Members who have access to the Courses in the Member Platform. Logins are personal to each Member User and must not be shared. The Customer may replace a Member User who leaves its organisation by notice to Cultural Infusion. Additional Member Users may be added at Cultural Infusion’s then-current fees. The Customer is responsible for each Member User’s compliance with this Agreement, and Member Users must be at least 18 years old (clause 4.4 applies to them). 

18.6 Licence to use Content 

For the term, Cultural Infusion grants the Customer a non-exclusive, non-transferable, non-sublicensable licence for its Member Users to access and use the Content for the Customer’s own internal business purposes, subject to clause 20.

18.7 Content and events

(a) Cultural Infusion may add, update, replace or withdraw Content from time to time and does not promise any particular Content, event, speaker or date. 

(b)  If Cultural Infusion cancels an event, it will use reasonable endeavours to offer a replacement session or a recording. Events may have their own registration terms, which apply in addition to this Agreement.

(c)  If a Member User posts comments, questions or other material to a forum or event on the Member Platform, the Customer grants Cultural Infusion a non-exclusive, royalty-free licence to use that material to operate and improve Membership. The Customer must ensure that material is lawful, respectful and does not infringe anyone’s rights or disclose confidential or personal information. 

18.8 General information only 

Content and Courses are general educational information. They are not legal, human resources, medical or other professional advice, and the Customer should obtain its own advice before relying on them (see also clause 12.1(b)). Some Content may belong to third parties and be subject to their terms. 

18.9 Fees, term and ending for Membership and Courses

(a)  Fees for Membership and Courses are as stated in the Order, are in Australian dollars and exclude GST, and are invoiced annually in advance unless the Order says otherwise. Clause 5 applies to them, including clause 5.7 (variation to Fees). 

(b)  Where Membership or Courses are ordered with Atlas, they run for the term of the Atlas subscription and renew and end with it, unless the Order says otherwise. If they are ordered on their own, clauses 10.1 and 10.2 apply to them in the same way: the term is as stated in the Order and renews automatically unless either party gives at least thirty (30) days’ written notice before the end of the term. 

(c)  Fees are non-refundable once the term starts, subject to clause 5.10, clause 19.9 and any right the Customer has under Applicable Law (including the Australian Consumer Law). There is no refund or reduction for unused Member Users, Content, events or Courses. Clause 11.2 (Early Termination) applies to Membership and Courses. 

(d)  Clauses 10.3 (Termination for Breach) and 10.4 (Suspension of Service) apply to Membership and Courses. If the Atlas subscription ends or is terminated (other than for Cultural Infusion’s breach), Membership and Courses supplied with it end at the same time unless the Special Conditions say otherwise. Cultural Infusion may terminate all products under the Order immediately if the Customer materially breaches clause 20.

(e)  When any licence under clauses 18 to 20 ends, the Customer must: (i) stop using the Content and Course Materials; (ii) remove all Course packages from its learning management system within ten (10) Business Days; and (iii) delete or destroy all copies of the Content and Course Materials and confirm this in writing if Cultural Infusion asks. The Customer may ask for an export of its own data within thirty (30) days after the end of the term. 

18.10 Rights that cannot be excluded 

Nothing in clauses 18 to 20 excludes, restricts or modifies any right or remedy, or any guarantee, warranty or other term or condition, that is implied or imposed by the Australian Consumer Law or any other Applicable Law and cannot lawfully be excluded, restricted or modified. To the extent permitted by Applicable Law, Cultural Infusion’s liability for breach of such a guarantee is limited, at Cultural Infusion’s option, to resupplying the relevant service or paying the cost of resupplying it.

19.2 Licence to use Course Materials 

For the term, Cultural Infusion grants the Customer a non-exclusive, non-transferable, non-sublicensable licence to use the Course Materials only to train its own Personnel, in the access model or models stated in the Order, and for no other purpose. The licence is annual and renews only on payment of the annual fee. It does not extend to affiliates, customers, clients or other third parties unless the Order says so. Course Materials are licensed, not sold. 

19.3 Delivery standards  

Under Models C and D the Customer must deliver the Course in unmodified form, keep all copyright and attribution notices, and not combine it with other material in a way that implies it is the Customer’s own or a third party’s own. Live Course sessions must not be recorded, streamed or transcribed without Cultural Infusion’s prior written consent. 

19.4 Learners and usage 

The Customer is responsible for its Learners and Trainers and for their compliance with this Agreement, and must stay within the numbers of Learners or Trainers stated in the Order. Cultural Infusion may monitor usage (including through LMS reports) and, on ten (10) Business Days’ notice, may audit the Customer’s use of Course Materials once in each twelve (12) month period. Additional usage is charged at Cultural Infusion’s then-current fees.

19.5 Learner conduct  

The Customer must ensure that Learners and Trainers behave respectfully in Course sessions and discussions, do not share unlawful, discriminatory or harassing material, comply with Cultural Infusion’s Acceptable Use Policy, and do not interfere with other Learners’ use of a Course. 

19.6 Learner information  

Learner personal information is handled under the Privacy Policy referred to in clause 9.1. Where a Course is delivered in the Customer’s LMS or in-house, the Customer is responsible for Learner information held in its own systems. The Customer must have the authority and give the notices needed for Cultural Infusion to receive any Learner details the Customer provides. 

19.7 Certificates and outcomes 

A completion certificate shows only that a Learner completed a Course. It is not an accreditation or qualification. Cultural Infusion does not promise any particular learning, behaviour or legal compliance outcome from a Course. 

19.8 Cultural content

Courses may include cultural knowledge, stories and material contributed by or about communities, including First Nations peoples. The Customer must deliver this content respectfully, must not take it out of context or change it, and acknowledges that Cultural Infusion and the relevant communities keep their rights in it. [Confirm against Cultural Infusion’s cultural protocols.] 

19.9 Updates and withdrawal

Cultural Infusion may update a Course. It may withdraw a Course on notice if needed for legal, rights or accuracy reasons, and will then offer an equivalent Course or a credit for the unused part of that Course’s fee. 

19.10 Custom courses  

Designing or customising a Course is an Additional Service that requires a separate Work Order (see clause 5.3(b)). Unless the Work Order says otherwise, Cultural Infusion owns the resulting Course Materials and licenses them to the Customer under this clause 19. The Customer keeps ownership of its own materials supplied for the work, and Cultural Infusion may use them only to do the work. 

19.11 Third party systems  

Cultural Infusion is not responsible for the availability, security or performance of the Customer’s LMS or any other third party system or service used to host, deliver or access a Course, and clause 3.2 does not apply to them. 

20.2 Restrictions  

(a)  The Customer must not, and must ensure that its Member Users, Trainers and Learners do not: 

           (i)    copy, record, screen-capture, download, translate, adapt or create derivative works from the Content or Course Materials, except as Cultural Infusion expressly permits or as clause 20.3 allows; 
          (ii)    distribute, publish, sell, lend, sub-license or otherwise make the Content or Course Materials available to anyone other than Member Users, Trainers or Learners; 
          (iii)   use the Content or Course Materials outside the Customer’s own internal training, including with external audiences, clients or customers;
          (iv)   use the Content or Course Materials to create, support or provide a Competing Product, or any competing course, membership or training product; 
          (v)    use the Content or Course Materials, or allow them to be used, to train, fine-tune, test or prompt any artificial intelligence or machine-learning system, or scrape or data-mine them; 
          (vi)    remove or change any copyright, attribution, watermark, tracking or confidentiality notice or marking;
          (vii)   bypass any technical protection measure, or share, sell or transfer login credentials; or 
          (viii)  reverse engineer, decompile or extract content from any Course package or the Member Platform. 
       

20.3 Permitted copies  

The Customer may make the number of printed or digital copies of downloadable Course Materials that is reasonably needed to train its Personnel, each carrying Cultural Infusion’s notices. All copies must be destroyed or deleted when the licence ends. 

20.4 Confidentiality of Cultural Infusion’s materials

The Content (other than Content Cultural Infusion has made public) and the Course Materials are Confidential Information of Cultural Infusion. The Customer must keep them confidential, use them only as clauses 18 to 20 permit, and disclose them only to Member Users, Trainers and Learners who need them and are bound by equivalent obligations. This obligation lasts for as long as the material remains confidential and is not limited by clause 8.4. Clause 8.6 (Adequacy of Damages) applies to it.

20.5 Enforcement

(a)  The Customer must promptly tell Cultural Infusion of any suspected unauthorised use of the Content or Course Materials and give Cultural Infusion reasonable help to investigate and stop it. 

(b)  Cultural Infusion may immediately suspend access if it reasonably suspects a material breach of this clause 20 (see also clause 10.4). 

(c)  The Customer acknowledges that damages alone may not be an adequate remedy for a breach of this clause 20, and that Cultural Infusion may also seek an injunction or other equitable relief. 

(d)  The Customer is responsible for breaches of this clause 20 by its Member Users, Trainers, Learners and Personnel, and indemnifies Cultural Infusion against loss arising from them, in addition to clause 12.4. 

(e)  The limit in clause 12.2(d) does not limit the Customer’s liability for breach of this clause 20 or for infringement of Cultural Infusion’s intellectual property rights.

20.6 Survival  

This clause 20 and clause 18.9 survive the expiry or termination of this Agreement.