Name: Open Learning Global Pty Ltd
ACN 162 780 467
Short form name: OLG
Name: School name as entered into the OpenLearning HubSpot form
Short form name: Licensee
This Agreement will be effective from the date of signing to 31 March 2021.
OLG grants to the Licensee a non-exclusive, non-transferable licence to use the OLG Online Platform for the Term, for the purpose of enabling the Licensee to offer and deliver Courses provided by High Resolves (Delivery Partner) via the OLG Online Learning Platform.
4.1 Obligations of OLG
During the Term, OLG must:
- provide access to the OLG Online Platform faithfully and diligently and with a high level of care, skill and diligence in accordance with best practice;
- provide access to all Course content that has mutually been agreed between the Delivery Partner and the Licensee;
- ensure that it obtains, and maintains all third-party consents, licences and permissions (statutory, regulatory, contractual or otherwise) it may require and which are necessary to enable it to comply with its obligations hereunder; and
- comply with all applicable laws and regulations.
4.2 Obligations of the Licensee
During the Term, the Licensee must:
- ensure that any use by the Licensee of the OLG Materials or Delivery Partner Materials, including the Online Learning Platform is conducted in accordance with the Obligations in this Agreement, and all applicable laws and requirements of any government agency in the Territory;
- not hold itself out as the agent of OLG or the Delivery Partner;
- not do any act or thing which may jeopardise OLG’s rights, title and interests in OLG Materials;
- not at any time put in issue the validity of OLG’s assertion to the ownership or use of the Intellectual Property subsisting in the OLG Materials or the Delivery Partner’s ownership of its Materials or do any act calculated to prejudice such ownership or use;
- identify any use of the OLG Online Learning Platform and OLG Materials, including its Intellectual Property, as the licensee of OLG in terms and format as notified or approved by OLG from time to time;
- ensure that any Authorisations required for the validity, enforceability and performance of its Obligations under this Agreement are obtained and promptly renewed and maintained in full force and effect;
- comply with any reasonable direction given by OLG as to the quality of any goods and services bearing any trademarks owned by OLG which constitute part of Intellectual Property;
- not modify, reverse engineer or decompile any of the OLG Materials or Delivery Partner Course content;
- comply with any reasonable instructions from OLG in relation to the use of any item of the OLG Online Learning Platform including the OLG Materials and Delivery Partner Materials (including ceasing to use the foregoing);
- only use the Trade Marks in connection with the establishment, operation and marketing of Courses via the OLG Online Learning Platform provided that, in respect of each use, the Trade Marks are used in a manner approved by OLG;
- co-operate with OLG in all matters relating to the Services and the Learning Services;
- provide for OLG, its Delivery Partners, its agents, subcontractors, consultants and employees, in a timely manner and at no charge, such access to its premises, office accommodation, data and other facilities as reasonably required by OLG for the purposes of providing the Services and the Learning Services, complying with its Obligations and monitoring the use of the License;
- provide, in a timely manner, such In-put Materials and other information as OLG may reasonably require in order to carry out services in a timely manner and ensure that it is accurate in all material respects.
5. Intellectual Property Rights
The Licensee acknowledges that ownership of and title in and to all OLG Material and Delivery Partner material is and will remain with OLG and the respective Delivery Partners. The Licensee acquires only the right to use the OLG Materials and Delivery Partner Materials to the extent set out in this Agreement and makes no claim to and does not acquire any ownership rights or title in or to the OLG Materials or Delivery Partner Materials.
5.2 Improvements by OLG
If OLG makes any improvement (OLG Improvements) or modification to the Online Learning Platform, such improvements shall become part of the OLG Material and title to and all such Intellectual Property subsisting in the OLG Improvements will belong to OLG.
5.3 Intellectual Property in Course content
OLG shall have, and make, no claim to any Intellectual Property subsisting in the content of any Course that are delivered by the Licensee or Delivery Partners via the Online Learning Platform.
5.4 Reporting infringement
The Licensee must give notice to OLG promptly, but in any event within five Business Days of becoming aware of any unauthorised third party act including any infringement of, misuse of, unauthorised use of, act inconsistent with, challenge to or claim, demand or suit against or related to any of the OLG Material (Infringement), giving such detailed particulars of the Infringement as is reasonably possible.
5.5 Conduct of proceedings
Upon receiving a notice under clause 5.4, OLG may, in its absolute discretion:
- take such action as it deems necessary or desirable (including, without limitation, issuing, conducting or settling legal or administrative proceedings at its own cost) to bring the Infringement to an end; and/or
- require the Licensee, to take all reasonable actions to support OLG enforcing its claim over the OLG Material provided that all reasonable costs and expenses incurred by Licensee in so doing are paid by OLG, unless the reason for taking such action is because the Licensee has breached any provisions of clause 4.2.
There will be no fee for the Licence for the specified Term of this Agreement.
7. Confidentiality and announcements
7.1 Confidentiality obligations
Each party must:
- use the Confidential Information only for the purposes of or contemplated by this Agreement;
- without limiting clause 7.1(a), not use the Confidential Information to the detriment of the other party;
- keep the Confidential Information confidential (including by taking reasonable precautions to maintain its confidentiality) and not disclose it to any person (other than as permitted under clause 7.2); and
- take reasonable steps (including legal action such as seeking an injunction) to ensure that any person to whom Confidential Information is disclosed under clause 7.2(b) or clause 7.2(c), uses that Confidential Information only in connection with this Agreement, does not use it to the detriment of the other party, keeps it confidential and does not disclose it to any person (other than in the circumstances described in clause 7.2(d)).
7.2 Permitted disclosure
However, the parties may disclose the Confidential Information:
- to their Related Bodies Corporate;
- to their Delivery Partners;
- to their officers, employees, contractors, agents, auditors and advisers (and the officers, employees, contractors, agents, auditors and advisers of a Related Body Corporate), but only to the extent that they need to know that information and only if they have agreed to use that Confidential Information only in connection with this Agreement, not to use it to the detriment of the other party, to keep it confidential and not to disclose it to any person (other than in the circumstances described in clause 7.2(d));
- to any person with the other party’s prior written consent (where, for the avoidance of doubt, if a party gives its consent subject to conditions, those conditions are met);
- if required by law, by an order of a court, tribunal or authority, by a regulatory body or by the rules of a stock exchange; and
- in connection with enforcing this Agreement.
7.3 Exceptions to Confidential Information
- Clause 7.1 does not apply to the following information:
- information which, at the time of disclosure, is already rightfully known by the receiving party or which it already possesses or control, where that knowledge, possession or control is not the subject of an existing obligation of confidentiality;
- without limiting clause 7.3(a)(i) information which, at the time of disclosure, was already developed by the receiving party independently of the disclosure; and
- information which, at the time of disclosure, is public knowledge (other than because of a breach of this Agreement or of any other obligation of confidentiality).
- Information which is Confidential Information when disclosed to the receiving party ceases to be Confidential Information in the following circumstances:
- where the receiving party subsequently receives the information from a third party (and the third party is not the subject of an existing obligation of confidentiality and has not obtained the information as a result of a breach of any other obligation of confidentiality) – the information ceases to be Confidential Information on and after the date of subsequent receipt;
- where the information subsequently becomes public knowledge (other than because of a breach of this Agreement or of any other obligation of confidentiality) – the information ceases to be Confidential Information on and after the date it becomes public knowledge.
7.4 Continuing obligations
The obligations in this clause 7 are continuing obligations, independent of the parties’ other obligations under this Agreement. They continue even after this Agreement is terminated and regardless of the continuation of any other business or other relationship between the parties.
8.1 OLG’s warranty regarding collection and disclosure
OLG warrants to the Licensee:
- That any Personal Information that OLG collects from or discloses to, (or both), the Licensee has been collected or disclosed, or both, in accordance with the Privacy Laws;
- where required, each individual to whom the Personal Information relates has been made aware of the Licensee’s existence or identity and of the other matters which (under the Privacy Laws) OLG is required to inform them about;
- the disclosure of that Personal Information to the Licensee is authorised by or under the Privacy Laws;
- that it must not use, collect, disclose or deal with the Personal Information of a User for any other purpose other than the purpose of performing its Obligations set out in this Agreement;
- that it must ensure the Personal Information of the Users held by OLG is protected against loss and against unauthorised access, use, modification and disclosure and other misuse;
- that it must not store or allow the storage of the Personal Information of Users outside Australia and not disclose or allow the disclosure of the Personal Information of Users to any person outside Australia; and
- promptly upon becoming aware of the same, notify the Licensee in writing, and give full details, of any breach of this clause 8.1.
8.2 Licensee’s obligation
In relation to any Personal Information OLG discloses to the Licensee, the Licensee must:
- not disclose, store, transfer or handle the information except in accordance with the Privacy Laws;
- take all reasonable steps to ensure that the information is protected from misuse or loss, and from unauthorised access, modification or disclosure;
- take all reasonable steps to destroy or permanently de-identify information that is no longer needed for the purposes of this Agreement;
- co-operate with any reasonable request or direction by OLG which relates to the protection of the information or the exercise of the functions of the Australian Information Commissioner under the Privacy Act 1988;
- ensure that access to the information is limited to those of its employees and contractors who are required to access that information for the purposes of this Agreement;
- comply with any reasonable direction by OLG in relation to a complaint it receives concerning privacy; and
- notify OLG as soon as practicable of any unlawful disclosure of Personal Information.
8.3 Continuing obligations
The obligations in this clause 8 are continuing obligations, independent of the parties’ other obligations under this Agreement. They continue even after this Agreement is terminated and regardless of the continuation of any other business or other relationship between the parties.