Last updated 07/01/2021
1.1. Open Learning Global Pty Ltd (“OLG” or “OpenLearning” or “we” or “us”) is the owner or authorised user of all intellectual property rights in the OLG Online Learning Platform, which facilitates and supports the delivery of education, training and learning courses and programs.
1.2. This Agreement (which includes these terms of service, the Application Form and all Schedules and Annexures that are attached here to) (“Agreement”)is entered into between OLG and the entity or person (“Course Provider” or “you” or “your”)who has completed the Application Form (as defined below) for accessing the Services (as defined below).
1.3. This Agreement will come into effect and be binding on both you and us, on the CommencementDate (as defined below).
NOTE THAT BY INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT (BY CLICKING ‘ACCEPT’ ON THE APPLICATION FORM OR BY SIGNING THE APPLICATION FORM) OR ACCESSING OR USING THE AGREEING TO TERMS, NOTICES CONTAINED OR REFERENCED INTHIS AGREEMENT. IF YOU DO NOT AGREE TO THIS AGREEMENT,PLEASE DO NOT USE THE SERVICES. FOR CLARITY, EACH OF YOU AND US EXPRESSLY AGREES THAT THIS AGREEMENT IS LEGALLY BINDING UPON US.
2.1. In addition to the terms defined above, set out below are further defined terms that are used in thisAgreement (including the Application Form):
“Application Form” means the form completed by you, whereby you have applied to access theServices on and subject to the terms of this Agreement;
"Commencement Date” means that date when this Agreement comes into force, which is the earlier of:(i) the date inserted in the Application Form; and(ii) your initial access to the Services;
"Confidential Information" means in the case of Course Provider, Course Provider Data and in the case of us includes:
(a) information relating to the OLG OnlineLearning Platform, including the OLG Intellectual Property
(b) information relating to the personnel, policies, business, systems, and data of OLG; and
(c) information relating to this Agreement including the terms on which the Services are to be provided to you under this Agreement;
"Course(s)" means the Courses, which are uploaded by the course Provider to the OLG OnlineLearning Platform including, where applicable, the Course Provider Portal;
"Course Provider Access Facilities" means telecommunications, networks, systems, software, hardware and any other facilities used or required by you or on your behalf for accessing and making use of the Services (including, where applicable, the Course Provider Portal), other than the facilities provided by us from time to time under this Agreement;
"Course Provider Data" means data of the Course Provider, including the Courses of the CourseProvider, their content, details and other materials to which we are given access for the purpose of providing the Services;
Course Provider Portal means, where available aspart of the Service Tier you have selected in the Application Form, the customisable page that allows you to list and administer all of the Courses and qualifications that you offer on the OLG OnlineLearning Platform;
“Course Quality Criteria Standards” means the criteria specified from time to time by OLG, details of which are accessible at: https://help.openlearning.com/t/x1j3na/3-the-course-quality-criteria
"Course Users" means any individual who is able or authorised by you to access, enrol, or otherwise access, participate in or undertake a Course;
(a) the same as in the GST Law;
(b) any other goods and services tax, or any tax applying to this transaction in a similar way; and
(c) any additional tax, penalty tax, fine, interest or other charge under a law of such a tax;
"GST Law" means the same as "GST Law" in A New Tax System (Goods and Services Tax) Act 1999 (Cth);
“Initial Term” means the period set out in the Application Form;
“OLG Intellectual Property” means all the intellectual property rights subsisting in the OLG Online Learning Platform and our Trademarks;
“OLG Online Learning Platform” includes the software and other intellectual property comprising, subsisting in or making up our hosted web and applications platform (including, where applicable, the Course Provider Portal) as well as any associated documents (in whatever form or medium) developed by, or licenced to, us in connection with the operations of our business;
“Period” means the period(s) specified in the Application Form;
“Renewal Term” means each additional period of this Agreement, as provided for in the Application Form, following the Initial Term;
"Schedule" means a schedule to this Agreement;
"Services" means the services and other facilities (based on the Service Tier selected by you in the Application Form) to be provided by us under this Agreement, being access (on a non-exclusive and non-transferable basis) to the OLG Online Learning Platform and such other services as described in Schedule 1 hereto;
“Service Fee” means the fee, the amount of which is determined by reference to the Service Tier you have selected in the Application Form and as may be adjusted under clause 8 hereof;
“Service Tier” means the tier of Service selected by you in the Application Form, with each Service Tier being determined by reference to, amongst other things, the maximum number of Course Users who may at any time during a Period access a Course via the OLG Online Learning Platform;
“Term” means the Initial Term and any Renewal Term;
Trademarks means the marks displayed in Schedule 2.
2.2 In this Agreement, unless the contrary intention appears:
2.2.1. the clause headings are for reference only and are not be relevant to interpretation;
2.2.2. words in the singular number include the plural and vice versa;
2.2.3. words importing a gender include any other gender;
2.2.4. a reference to a person includes bodies corporate and unincorporated associations and partnerships;
2.2.5. where a word or phrase is given a particular meaning, other parts of speech and grammatical forms of that word or phrase have corresponding meanings;
2.2.6. and monetary references are references to Australian currency.
3.1. This Agreement begins on the Commencement Date and continues until the end of the Initial Term, unless automatically renewed under clause 3.2 or terminated earlier under the provisions of the Agreement that allow for earlier termination.
3.2. Subject to clause 3.3, this Agreement will automatically renew for the applicable Renewal Term (as set out in the Application Form) after the Initial Term unless either we or you gives written notice to the other that we or you do not want this Agreement to continue. The notice to discontinue this Agreement must be given at least 30 days before (i) the end of the Initial Term; or (ii) where the applicable Renewal Term is one month, not less than 24 hours before the end of each such Renewal Term; or (iii) where the applicable Renewal Term is one year, at least 30 days before each anniversary of the end of the Initial Term, where this Agreement has continued after the Initial Term.
3.3. If any terms of this Agreement will change (including changes to fees) after the Initial Term, we will give you written notice of those changes at least 30 days before the end of (i) the Initial Term or (ii) each Renewal Period, where the Renewal Term is one year. If the Renewal Term is one month, changes to the Agreement will not take effect before the expiry of 30 days from the date we notify of those changes.
4.1. From the Commencement Date, we will grant you a non-exclusive, non-transferable right to access and use the Services on the terms of this Agreement, including payment of the Service Fee.
4.2. You agree that you may use the Services for the sole purpose of creating, offering, running, and administering the Courses and, subject to your compliance with the terms of this Agreement, you may upload the Courses via the OLG Online Learning Platform, including, where applicable, the Course Provider Portal in the manner set out in the Application Form.
4.3. You acknowledge that this Agreement is a services agreement and we will not be delivering copies of any software to you as part of the Services.
5.1. You agree to ensure that you will allow:
5.1.1. access to the OLG Online Learning Platform, including where applicable, the Course Provider Portal and use of the Services only by those of your staff who create, run and administer the Course and that the maximum number of administrator accounts will be the number corresponding to the Service Tier you have selected in the Application Form ; and
5.1.2. access to the Course using the OLG Online Learning Platform, including where applicable, the Course Provider Portal, only by Course Users, the maximum number of whom will correspond to Service Tier you have selected in the Application Form,
and you must ensure that all such persons, who are referred to in this clause as “Authorised Users” comply with the obligations set out in this Agreement. Any breach of the terms of this Agreement by an Authorised User will be treated as if it is a breach of this Agreement by you.
5.2 During the Term, you confirm that you will:
5.2.1. not knowingly or negligently do any act or thing which may jeopardise our rights, title and interests in the OLG Intellectual Property;
5.2.2. not introduce or upload anything to the OLG Online Learning Platform, including where applicable, the Course Provider Portal Course Provider Portal that includes viruses or other malicious code;
5.2.3. not at any time put in issue the validity of the intellectual property and the ownership or authorised use of the OLG Intellectual Property or do any act calculated to prejudice such validity;
5.2.4. co-operate with us in all matters relating to the Services
5.2.5. comply with any reasonable instructions from us in relation to the use of the Services (including ceasing to use the foregoing);
5.2.6. if relevant or applicable, only use the Trademarks in compliance with your obligations under this Agreement including the provisions set out in Appendix A;
5.2.7. other than as expressly permitted under this Agreement, not (and must not permit any third party to): (i) rent, lease, provide access to or sublicense the Services to a third party; (ii) use the Services to provide, or incorporate the Services into, any product or service provided to a third party or commercially exploit the Services or (including by making it available to any third party); (iii) use the Services to develop a similar or competing product or service; (iv) reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code to the Services; (v) copy, modify or create any derivative work of the Services or any of our documentation; (vi) publicly disseminate performance information regarding the Services;
5.2.8. not sub-licence, assign or novate the benefit or burden of this Agreement in whole or part. A change in control of or affecting you will be deemed to be an assignment, with "control" referring to the power to materially influence your decision making or policies;
5.2.9. ensure that any use of the Services complies with all applicable laws and requirements of any relevant government agency;
5.2.10. not hold yourself out as our agent;
5.2.11. ensure that any authorisations required for the validity, enforceability, and performance of your obligations under this Agreement are obtained and promptly renewed and maintained in full force and effect;
5.2.12. comply with any access restrictions, security procedures and operational requirements that we may notify to you;
5.2.13. are responsible for providing your own Course Provider Access Facilities;
5.2.14. ensure that all Course Provider Access Facilities meet the security standards required by us from time to time and are and will remain free from any circumstances (including viruses) which may adversely affect us, OLG Online Learning Platform, including where applicable, the Course Provider Portal or the Services and are otherwise reasonably appropriate for use in conjunction with the Services.
5.3. You also agree not to make, or permit, any use of the OLG Online Learning Platform, including where applicable, the Course Provider Portal) and the Services (including by uploading any Course Provider Data onto the OLG Online Learning Platform, including where applicable, the Course Provider Portal in a way which is unacceptable. Use is unacceptable if:
5.3.1. it involves anything which is defamatory, obscene, indecent, abusive, offensive, harassing, violent, hateful, inflammatory, or otherwise (in our reasonable view) is objectionable;
5.3.2. it involves unsolicited electronic messages;
5.3.3 it would involve the contravention of any person’s rights (including any patent, trademark, trade secret, copyright or other intellectual property or other rights of any other person);
5.3.4 it may promote any illegal activity, or advocate, promote or assist any unlawful act or contravene any relevant laws, including laws of any countries in which a Course is accessed by a Course User;
5.3.5. it gives the impression that a Course, or a statement made by or on your behalf, emanates from, or is endorsed by, us or any other person or entity, if this is not the case; or
5.3.6. it may otherwise be reasonably regarded by us to be prejudicial to our reputation, our business or bring us or any of our officers into disrepute.
5.4. Without limiting any other rights we may have, you agree that we may immediately suspend all or any part of the Services, and remove or disable access to anything (including all or part of the Course(s)) that contravenes the restrictions in clause 5.3 or is otherwise in breach of this Agreement.
5.5. You confirm that you solely responsible for the accuracy, content, quality, reliability and legality of all Course Provider Data including all Courses and their content and you further agree that unless agreed otherwise in writing with us, this sole responsibility extends to you ensuring that:
5.5.1. the Course Provider Data, the Course(s) and any materials/content uploaded onto the Course Provider Portal or the use of the Services by your Authorised Users comply with this Agreement and all applicable laws, including the laws of all countries in which the Course(s) are offered or are accessed by Course Users;
5.5.2. the creation, running and administration of the Course(s) and maintaining, or requiring all Authorised Users to maintain the security of any passwords and usernames required to access the Course Provider Portal or participate in the Course(s);
5.5.3. you have provided all information and obtained all consents required for us to provide the Services or for you to offer and run the Courses using the Course Provider Portal including those in relation to the collection, use, disclosure, overseas transfer and storage of personal information of any individual whose personal information may be included in Course Provider Data and any consents from relevant government bodies required for offering and running the Courses in all countries in which any Course is accessed by a Course User; and
5.5.4. each Course meets the Course Quality Criteria Standards where applicable.
6.1. Except where this Agreement states otherwise, we retain all right, title, and interest (including all intellectual property rights) in and to the Services, including the OLG Online Learning Platform and all related and underlying technology and documentation and any derivative works, modifications or improvements of any of the foregoing and all logos and trademarks reproduced through the Services, and this Agreement does not grant to you any rights to or interests in any of the foregoing or any of their components.
6.2. Subject to clause 6.3, we agree that we have no right, title or interest in or to the content of any of the Courses or the Course Provider Data and we agree to treat any Course Provider Data as Confidential Information in accordance with the terms of clause 9.
6.3.You agree that we will have the right to access the Course Provider Data to ensure that you are complying with your obligations under this Agreement, provide any Services requested by you and/or maintain and support the OLG Online Learning Platform, including where applicable the Course Provider Portal. To this end, you hereby grant to us a limited, non-exclusive, royalty fee and non-transferable license, to access, copy, store, configure, perform, display and transmit Course Provider Data as necessary to provide the Services to you.
8.1. You must pay the Service Fee (without any set off or deduction) at the rate and in the manner and time specified in this Agreement (including in the Application Form).
8.2. If during any Period following the Commencement Date (“First Period”) there are more Course Users than the maximum number of Course Users permitted by the Service Tier you have selected in the Application Form, then with effect from the date when the number of Course Users first exceeded the number permitted by the Service Tier you selected in the Application Form (“Adjustment Date”), you will be deemed to have selected, as a new Service Tier, the next sequential Service Tier that includes the number of Course Users as at that Adjustment Date and the Service Fee will, from the Adjustment Date, be adjusted by increasing the Service Fee pro rata for the period from the Adjustment Date to the end of the relevant Period.
8.3. If at any time following the First Period (“Further Adjustment Date”), there are more Course Users than the maximum number of Course Users permitted by the Service Tier that is at that time applicable to you, the process outlined in clause 8.2 will apply with the necessary changes being made so that you will be deemed to have selected, as a new Service Tier, the next sequential Service Tier that includes the number of Course Users as that the Further Adjustment Date and the Service Fee will from the Further Adjustment Date be adjusted by increasing the Service Fee pro rata for the period from the Further Adjustment Date to the end of the then current Period.
8.4. In addition to paying the Service Fee and any other amounts payable under or in connection with this Agreement (all of which are exclusive of GST), you will:
8.4.1. pay to us an amount equal to any GST payable for any supply by us in connection with this Agreement; and
8.4.2. make such payment on the date when the Service Fee or other amounts to which it relates are due.
9.1. We and you agree to take reasonable steps to protect any Confidential Information that either of us shares with the other and to prevent such information from being accessed by any unauthorised individual without the prior written approval of the other.
9.2. Neither of you nor we will be in breach of clause 9.1 for any disclosures of Confidential Information which are required by law, court order, any regulatory authority to which either of us is subject, to enforce the terms of this Agreement or where the disclosure is to any professional advisers, auditors or insurers or where the information has become public knowledge other than through either of your or our wrongful act or omission.
9.3. This clause will survive the termination of this Agreement.
10.1. You and we acknowledge that there are certain guarantees, warranties, terms and conditions imposed by law relating to the supply of goods and services which the law expressly provides may not be excluded, restricted or modified or may only be limited to a certain extent ("Statutory Obligations").
10.2. Nothing in this Agreement is intended to exclude, restrict, or modify any Statutory Obligations to the extent that such exclusion, restriction, or modification would render this Agreement or any provision of this Agreement void, illegal or unenforceable. Except for these Statutory Obligations and any other rights, you have that we cannot by law limit or exclude, we are bound only by the express terms of this Agreement.
10.3. Our liability for any breach of a Statutory Obligation, unless the law states otherwise, is limited at our option to either replacing or paying you the cost of replacing the relevant service (unless the Statutory Obligation requires otherwise).
10.4. Except for liability that we cannot exclude or limit by law (as set out above) our liability in connection with the Services and this Agreement, tort (including negligence) or otherwise is limited as follows:
10.4.1. we have no liability for any loss of revenue or profit, loss of goodwill, loss of customers, loss of capital, indirect, consequential, incidental damages or special loss, damage, or expense;
10.4.2. we have no liability for any loss or corruption of Course Provider Data or our liability cannot be excluded, our liability will be limited to taking reasonable steps to recover that data from our available backups;
10.4.3. our total aggregate liability to you in any circumstances is limited to the total amount of Service Fees paid to us by you in the 12 months immediately preceding the date on which the claim giving rise to the liability arose.
10.5. You acknowledge and agree that before entering into this Agreement, you had a reasonable opportunity to examine and satisfy yourself regarding terms of this Agreement and to seek independent legal advice on its terms.
11.1. You agree to indemnify and OLG and each of our officers, employees, contractors and agents (for whose benefit we hold the indemnity on trust) ("those indemnified") from and against any loss (including legal fees, costs, expenses, damages and liability, whether actual or prospective) incurred or likely to be incurred by any of those indemnified arising from any claims against those indemnified where such loss or liability was caused as a result of:
11.1.1. a breach by you of your obligations under this Agreement;
11.1.2. any wilful, unlawful, or negligent act or omission of yours;
11.1.3. any claim from a third party that the Course Provider Data or the Course(s) infringe the rights (including intellectual property rights) of a third party.
12.1. We may terminate this Agreement or suspend performance of our obligations under this Agreement (for such period as we may specify) immediately by notice in writing if:
12.1.1. you are is in breach of any term of this Agreement and such breach, if it is capable of being remedied, is not remedied within fourteen (14) days after receiving notice of the breach from us;
12.1.2. you are is in breach of any term of this Agreement and the breach cannot be remedied;
12.1.3. without limiting the above, you fail to pay any Service Fee;
12.1.4. (to the maximum extent permitted by applicable law) you or your business becomes insolvent, your business goes into liquidation or has a receiver or manager appointed over any of your or your business’ assets, you become bankrupt or make any arrangement with your creditors, or become subject to any similar insolvency event in any country;
12.1.5. you cease or threaten to cease conducting your business in the normal manner.
12.2. If any of the circumstances referred to in clause 12.1 occurs or the Agreement is terminated under clause 12 or under clause 13, you:
12.2.1. must immediately cease use of the Services including the OLG Online Learning Platform (including the Course Provider Portal;
12.2.2. must return all our property that is in your possession, custody or control. We also agree to return to you all your property that is in our possession, custody, or control;
12.2.3. agree that we will retain any moneys paid by you under this Agreement and you will pay any amount that is outstanding to us under the terms of this Agreement;
12.2.4. agree that we discharged from any further obligations under this Agreement.
12.3. You also agree that on expiry or termination of this Agreement for any reason, all of your rights in respect of the Services will end and any termination of this Agreement will not affect the rights either you or we have against the other in respect of anything done or in respect of any sums or other claims outstanding at the time of termination omitted under this Agreement before such termination nor will it affect the coming into force or the continuance of any provision which is expressly or by implication intended to come into or continue in force on or after the date of termination.
13.1. We will not be liable for any delay or failure to perform our obligations under this Agreement arising out of any event or circumstance beyond our reasonable control.
13.2. If a delay or failure is caused or anticipated due to any event or circumstance beyond our reasonable control our obligations will be suspended. If the delay or failure by exceeds sixty (60) days, we may immediately terminate the Agreement on providing notice in writing to you.
13.3. If this Agreement is terminated pursuant to the preceding clause, we are not liable to refund any moneys paid by you under to this Agreement except for a pro rata portion of the Service Fee that you have paid and which covers the unexpired part of the remaining Term.
This Agreement constitutes the entire Agreement between you and us and supersedes all prior representations, agreements, statements, and understandings, whether verbal or in writing.
15.1. No right under this Agreement will be waived except by notice in writing signed by you and us. A waiver by us will not prejudice our rights in respect of any later breach of the Agreement by you. Any failure by us to enforce any clause of this Agreement, or if we grant any forbearance, delay, or indulgence to you, this will not be construed as a waiver of our rights under this Agreement.
15.2. Subject to clause 3.3 above, we may make changes to this Agreement by giving you not less than 30 days’ notice of the change before the change becomes effective. If the change is material and is not acceptable to you, you may terminate this Agreement by giving us written notice of the termination before the end of the 30 day period referred to in this clause and we will refund you any pro-rata Service Fee in respect the unexpired part of the Period. If we have not received your notice of termination before the expiry of this 30-day period, you will from that date be bound by this Agreement as changed.
15.3. Except as stated above no provisions of this Agreement will be varied, except by agreement in writing signed by you and us.
16.1. You and we agree to attempt to settle any dispute arising out of or relating to this Agreement, by mediation administered by the Australian Disputes Centre (“ADC”) before having recourse to arbitration or litigation.
16.2. Any Dispute must be dealt with in the following manner:
16.2.1. either you or we must provide written notice of the Dispute to the other party.
16.2.2. within 7 days of receipt of notice, you and we must meet to negotiate and attempt to resolve the Dispute.
16.2.3. If neither you nor we can resolve the Dispute through negotiation within 5 days after first meeting to negotiate and attempt to resolve the Dispute, you and we agree to endeavour in good faith to settle the Dispute by mediation administered by the ADC.
16.2.4. The mediation must be conducted in accordance with ADC Guidelines for Commercial Mediation operating at the time the matter is referred to the ADC (“Guidelines”). The terms of the Guidelines are deemed incorporated into this Agreement, except where they conflict with anything contained in this clause 16.
16.2.5. You and we may be represented by a qualified legal practitioner sat the mediation.
16.2.6. You and we will each be responsible for one half of the mediator’s costs and you and we will be responsible for its own costs of the mediation.
16.2.7. The mediator will assist to resolve the Dispute.
16.3. Nothing in this clause will prevent you or us from seeking urgent equitable relief before an appropriate court.
This Agreement will be governed by and construed according to the law of the State of New South Wales, Australia and the parties submit to the non-exclusive jurisdiction of the courts of that State.
18.1. Notices under this Agreement may be delivered by hand, by mail, by facsimile or by email to the addresses specified in the Application Form.
18.2. Notices will be deemed given:
18.2.1. in the case of hand delivery, on written acknowledgment of receipt by an officer or other duly authorised employee, agent, or representative of the receiving party;
18.2.2. in the case of posting, three days after despatch;
18.2.3. in the case of facsimile, on receipt of transmission if received on a business day or otherwise at the commencement of the first business day following transmission; or
18.2.4. in the case of email, at the time of receipt of the email, namely when that email enters the receiving party’s information system (if received on a business day, or otherwise at the commencement of the first business day following that receipt).
The Agreement may be executed in counterparts by the respective parties, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement, provided that this Agreement shall be of no force and effect until the counterparts are exchanged.
OLG Learning Platform Target Availability: 99.5% excluding planned outages (approximately 4 hours of outage per calendar month).
Use of Trademarks
Course Provider must:
1. comply with all of OLG's reasonable directions concerning the use of the Trademarks as notified to Course Provider;
2. not use the Trademarks in any manner which is likely to deceive or cause confusion, or prejudice the distinctiveness of the Trademarks to OLG or its related bodies corporate or the associated goodwill or reputation;
3. not, by any act or omission, use the Trademarks in any way which tarnishes, degrades, disparages or reflects adversely in any material aspect on OLG or its related bodies corporate, including any of their businesses and/or associated reputation;
4. not use the Trademarks in direct combination with any other marks, names, words, logos, symbols or devices, without the prior written consent of OLG;
5. not use, or seek to register, any trade or service marks which are substantially similar to or so nearly resemble, any of the Trademarks, so as to be likely to cause deception or confusion, other than those permitted by the OLG expressly in writing and/or permitted by the terms of this Agreement;
6. not oppose, challenge, attack or seek to cancel or remove any of the Trademarks, or in any way assist a related body corporate or third party to oppose, challenge, attack or seek to cancel or remove any of the Trademarks, unless expressly approved in writing to do so by OLG;
7. andnot sell, assign, transfer, transmit or otherwise dispose (or purport to dispose) of any of the Trademarks unless expressly approved in writing to do so by the OLG.
1. Course Provider must provide to OLG information regarding its use of the Trademarks, in respect of the Course Provider’s business, when requested by the OLG from time to time, to check Course Provider’s compliance with this Agreement, including the terms of this Appendix.
2. Course Provider must when requested by OLG deliver to OLG copies of any documents and materials (however embodied) which include representations of, or references, to any of the Trademarks, in order to verify Course Provider’s compliance with this Agreement.
For the purpose of this Annexure, “related body corporate” has the meaning defined in the Corporations Act 2001 (Cth).