Terms of Service
1.1 These Terms and Conditions, and any other terms and policies referred to in these Terms and Conditions form the agreement between Coassemble Pty Ltd ABN 92 616 882 047 (referred to as “Coassemble”, “we” or “us”) and the user (referred to as “Customer” or “you”), collectively referred to as the Parties or each a Party (Agreement).
1.2 Coassemble owns the cloud-based LMS Platform which is accessible at https://coassemble.com/ (Site)
1.3 The Customer wishes to use the Services.
1.4 This Agreement sets out the terms upon which Coassemble has agreed to grant the Customer a right to use the Services. This Agreement is binding on any use of the Services and applies to the Customer from the time that Coassemble provides the Customer with an account (Account) to access and use the Services (Effective Date).
1.5 By accessing and/or using the Services you:
warrant to us that you have the legal capacity to enter into a legally binding agreement with us or (if you are under 18 years of age) you have your parent’s or legal guardian’s permission to access and use the Site and they have agreed to this Agreement on your behalf; and
agree to use the Services in accordance with this Agreement.
Please read this Agreement carefully and immediately cease using the Services if you do not agree to it.
1.6 You must not create an Account unless you are at least 16 years of age. If you are a parent or legal guardian permitting a person who is at least 16 years of age but under 18 years of age (a Minor) to create an Account and/or use the Site, you agree to:(i) supervise the Minor’s use of the Site and their account; (ii) assume all risks associated with, and liabilities resulting from, the Minor’s use of the Site and their account; (iii) ensure that the content on the Site is suitable for the Minor; (iv) ensure all information submitted to us by the Minor is accurate; and (v) provide the consents, representations and warranties contained in this Agreement on the Minor’s behalf.
1.7 By using our Services and subscribing on our Site, you acknowledge that you have read, understood, and accepted this Agreement and you have the authority to act on behalf of any person or entity for whom you are using the Services, and you are deemed to have agreed to this Agreement on behalf of any entity for whom you use the Services.
2.1 On or from the Effective Date and during the Term, Coassemble agrees to provide the Services in accordance with the terms of this Agreement.
2.2 The Customer agrees Coassemble owns or holds the applicable licences to all Intellectual Property Rights including but not limited to copyright in the Software and PaaS Services and any documentation provided with the Services by Coassemble to the Customer including any Customer configuration documentation.
2.3 The Parties agree that:
a) Coassemble will supply the Services on a non-exclusive basis;
b) the Services may use third party products or services;
c) Coassemble does not make any warranty or representation as to the ability of the facilities or services of any third-party suppliers; and
d) Coassemble is not liable for any failure in, fault with or degradation of the Services if that failure, fault or degradation is attributable to or caused by any failure of the Customer Environment or the facilities or services of any third party.
2.4 Coassemble reserves the right to refuse any request in relation to the Services that it deems inappropriate, unreasonable or illegal.
2.5 Coassemble reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Service (or any part thereof) with notice. Notice must be given prior to any service disruption.
3 PaaS Service Licence
3.1 In consideration for payment of the Fees, Coassemble grants to the Customer a non-exclusive, non-transferable (except as otherwise permitted under this Agreement), personal, revocable, licence to access and use the PaaS Services in accordance with Coassemble’s intended purpose for the PaaS Services (PaaS Licence).
3.2 The Customer agrees that the PaaS Licence:
a) commences from the Effective Date or the day the Customer is granted access to the PaaS Services by Coassemble, whichever occurs first;
b) permits the Customer to use the PaaS Services in accordance with the PaaS Services’ normal operating procedures; and
c) permits the Customer to access and use the PaaS Services in accordance with the number and type of Authorised Users, as applicable.
3.3 If the number of Authorised Users is exceeded, Coassemble may charge a Fee for each additional Authorised User as specified in on the Site.
4 Licence Restrictions
4.1 The Customer must not access or use the PaaS Services except as permitted by the PaaS Licence and may not do or authorise the commission of any act that would or might invalidate or be inconsistent with Coassemble’s Intellectual Property Rights in the PaaS Services or Software. Without limiting the foregoing provisions, the Customer agrees and acknowledges that it must not and will not permit any person to:
a) resell, assign, transfer, distribute or provide others with access to the PaaS Services;
b) “frame”, “mirror” or serve any of the PaaS Services on any web server or other computer server over the Internet or any other network;
c) copy, alter, modify, create derivative works from, reproduce, resell, transfer to a third party, reverse assemble, reverse engineer, reverse compile or enhance the PaaS Services or Software (except as expressly permitted by the Copyright Act 1968 (Cth)); or
d) alter, remove or tamper with any trademarks, any patent or copyright notices, or any confidentiality legend or notice, or any numbers, or other means of identification used on or in relation to the PaaS Services or Software.
4.2 The Customer must not use the PaaS Services in any way which is in breach of any statute, regulation, law or legal right of any person within Australia or the jurisdiction in which the Customer or its Personnel are located.
5 Development Services
5.1 Coassemble may provide Development Services to the Customer in accordance with this Agreement in consideration for a Development Fee.
5.2 Where Coassemble agrees to provide Development Services, Coassemble will provide the Development Services in accordance with this clause 5.
5.3 If the Customer requires any changes during the Term of this Agreement to the scope, functionality or nature of the PaaS Services to be provided, or the elements of the Software used to provide the PaaS Services, which Coassemble reasonably believes requires additional time, material or resources to be provided by Coassemble, the procedure to follow for such Development Services will be as follows:
a) the Customer will notify Coassemble of any changes it requires; and
b) following notification, Coassemble will provide the Customer with written notice in the form of a statement of work covering:
the changes required to the PaaS Services;
the Development Services required by such changes; and
the Development Fee required to undertake such Development Services.
5.4 If the Customer agrees to:
the changes to the Services;
the Development Services; and
the Development Fees,
this Agreement will be considered varied to include such changes as set out in the notice provided by Coassemble pursuant to this clause.
6.2 The Customer grants to Coassemble a limited licence to copy, transmit, store and back-up or otherwise access, use or make reference to any Intellectual Property Rights in the Data:
a) to supply the Services including to enable the Customer, its Personnel and any Authorised Users to access and use the Services;
b) for diagnostic purposes;
c) to test, enhance and otherwise modify the Services whether requested by the Customer or not;
d) to develop other Services; and
e) as reasonably required for the performance of Coassemble’s obligations under this Agreement.
6.3 The Customer represents and warrants that any and all Data supplied by the Customer or otherwise accessed by Coassemble through the provision of the Services is the sole and exclusive property of the Customer or the Customer has secured any and all authorisations and rights to use the Data as applicable.
6.4 The Customer acknowledges and agrees that:
a) any collation, conversion and analysis of Data performed as part of the Services whether by the Services or otherwise is likely to be subject to human input and machine errors, omissions, delays and losses including but not limited to any loss of Data. Coassemble is not liable for any such errors, omissions, delays or losses. The Customer acknowledges and agrees it is responsible for adopting reasonable measures to limit the impact of such loss or error;
b) Coassemble may relocate the Data to another jurisdiction. In each case, Coassemble will give the Customer written notice and use all reasonable endeavours to minimise the effect of such change on the Customer’s access and use of the Services;
c) Coassemble is not responsible for any corruption or loss of any Data if such corruption or loss is due to an act or omission by the Customer, its Personnel, its Related Bodies Corporate or any Authorised Users; and
d) Coassemble is not responsible for the integrity or existence of any Data on the Customer’s Environment, network or any device controlled by the Customer or its Personnel.
7.1 Support is provided via email, or via our online help desk, for Account holders (we do not provide support to participants who are using internet-hosted resources). Most emails will be replied to within 12-24 hours, or 48 hours during weekends. Phone support is available to our enterprise Plan Customers.
8 Coassemble’s Additional Responsibilities and Obligations
8.1 Coassemble must maintain commercially reasonable security measures to protect all Confidential Information in its possession or control, or in the possession or control of its Personnel, from unauthorised access, use, copying or disclosure.
9 Customer Responsibilities and Obligations
9.1 The Customer will provide all required materials as required by Coassemble as requested for Coassemble to perform the Services.
9.2 The Customer agrees to participate in reasonable marketing activities that promote the benefits of the Services, as directed by Coassemble from time to time.
9.3 The Customer must, at the Customer’s own expense:
a) provide all reasonable assistance and cooperation to Coassemble in order to enable Coassemble to supply the Services in an efficient and timely manner including but not limited to obtaining from Authorised Users any consents necessary to allow the Customer and its Personnel to engage in the activities described in this Agreement and to allow Coassemble to provide the Services;
b) use reasonable endeavours to ensure the integrity of the Data;
c) permit Coassemble and its Personnel to have reasonable access to the Customer Environment for the purposes of supplying the Services;
d) ensure that only Customer Personnel and Authorised Users will access and use the PaaS Services and such use and access will be in accordance with the terms and conditions of the PaaS Licence; and
e) make any changes to its Customer Environment that may be required to support the delivery and operation of any Services.
9.4 The Customer is responsible for its use of the Services and must ensure that no person uses the Services:
a) to break any law or infringe any person’s rights including but not limited to Intellectual Property Rights;
b) to transmit, publish or communicate material that is illegal, defamatory, offensive, abusive, indecent, menacing or unwanted; or
c) in any way that damages, interferes with or interrupts the supply of the Services.
9.5 The Customer acknowledges and agrees that:
a) it is responsible for all users using the Services including its Personnel and any Authorised Users;
b) its use of the Services will be at its own risk;
c) it is responsible for maintaining the security of its Account and password. We cannot and will not be liable for any loss or damage from your failure to comply with this security obligation;
d) downgrading your Plan may cause the loss of content, features, or capacity of your Account. We do not accept any liability for such loss;
e) we may alter or update your logins and passwords and the logins and passwords of any Authorised Users at any time throughout the Term;
f) you are responsible for all content posted and activity that occurs under your Account. This includes content posted by others who have logins or accounts associated with your Account;
g) If you operate a shared Service Account, and make (or allow any third party to make) material available by means of the Services (including shareable links and SCORM objects), you are entirely responsible for the content of, and any harm resulting from, that content. That is the case regardless of what form the content takes, which includes, but is not limited to text, photo, video, media, audio, or code;
h) the technical processing and transmission of the Service, including your content, may be transferred unencrypted and involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices;
i) if Coassemble wishes to alter the delivery of the PaaS Services which requires a change to the Customer Environment (including reconfigurations or interface customisations the extent necessary to access or use the PaaS Services) the Customer will give any assistance to Coassemble or make any such changes to the Customer Environment, that Coassemble reasonably requires; and
j) Coassemble may pursue any available equitable or other remedy against the Customer as a result of a breach by the Customer of any provision of this Agreement.
10 Prohibited Use
10.1 The Customer acknowledges and agrees that this Agreement incorporates by reference the terms of any acceptable use policy as set out on Coassemble’s website or as provided to the Customer from time to time.
10.2 There is no limit to the aggregate file size of your content on the Service. If your bandwidth usage significantly exceeds the average bandwidth usage (as determined solely by us) of other customers, we reserve the right to immediately disable your Account, or throttle your Account until you can reduce your bandwidth consumption, or impose an appropriate Fee commensurate with such excess usage.
10.3 The Customer acknowledges and agrees that it must not, and will ensure each Authorised User does not:
a) use the PaaS Services to store, transmit, process or otherwise use any media to which they do not own or have the rights, or otherwise which is illegal to own or distribute in any country, including Australia or the United States of America;
b) use the PaaS Services to violate any legal rights of any person, the Customer or other entity in any jurisdiction;
c) use the PaaS Services in relation to crimes such as theft and fraud;
d) use the Services in breach of laws relating to the protection of copyright, trade secrets, patents or other intellectual property and laws relating to spam or privacy;
e) make any unauthorised copy of any copyrighted material owned or licenced by Coassemble;
f) introduce malicious programs into Coassemble System (e.g. viruses, worms, trojan horses, e-mail bombs);
g) reveal the Customer’s account password to others or allow use of the Customer’s account to those who are not the Customer’s Personnel or Authorised Users;
h) use the PaaS Services to make fraudulent offers of goods or services;
i) use the PaaS Services to carry out security breaches or disruptions of a network. Security breaches include, but are not limited to, accessing data of which the Customer is not an intended recipient or logging into a server or account that the Customer is not expressly authorised to access or corrupting any data. For the purposes of this paragraph, “security breaches” includes, but is not limited to, network sniffing/monitoring, pinged floods, packet spoofing, denial of service, and forged routing information for malicious purposes;
j) use any program/script/command, or sending messages of any kind, with the intent to interfere with, or disable, any persons’ use of the PaaS Services;
k) send any unsolicited email messages through or to users of the PaaS Services in breach of the Spam Act 2003 (Cth) or to send any form of harassment via email, or any other form of messaging, whether through language, frequency, or size of messages; use the PaaS Services in breach of any person’s privacy (such as by way of identity theft or “phishing”) is strictly prohibited; and
l) use the PaaS Services to circumvent user authentication or security of any of the Customer’s hosts, networks or accounts or those of the Customer’s customers or suppliers.
11.1 Each Party will appoint and maintain at all times a relationship manager who will be responsible for the management of this Agreement.
12 Audit and Monitoring
12.1 Coassemble, its Personnel or any person authorised by Coassemble has the right to audit and inspect, and appoint one or more auditors to audit and inspect, any Customer Systems, documents and records to verify the Customer’s compliance with this Agreement.
12.2 Upon receipt of written notice from Coassemble, the Customer agrees to permit the audits and inspections referred to in clause 12.1 by Coassemble, its Personnel or any other person authorised by Coassemble or a regulatory authority or governing body and the Customer will provide reasonable assistance as required. The Customer agrees to give such person reasonable assistance, access and facilities to enable the auditing or monitoring by Coassemble.
12.3 The Parties agree that Coassemble must bear all costs associated with any audits and inspections under this clause.
13.1 The Customer must pay Coassemble:
a) the Fee; and
b) any other amount payable to Coassemble under this Agreement,
without set off or delay via credit card or direct credit, in advance of the next Plan billing cycle.
13.2 The Fee is billed in advance in accordance with the Customer’s applicable Plan cycle based on the number of Authorised Users in the month before the commencement of the next Plan billing cycle and is non-refundable.
13.3 When a Customer exceeds the current Authorised User tier allowance in its Plan, a notification will be sent to you immediately, and then after 2 days, notifying Customer of the excess usage on the Account. If you downgrade your Account to a Plan with a lower Authorised User tier during a Plan cycle we will not provide a refund or credit to the Account.
13.4 There will be no refunds or credits for an incomplete Plan cycle, Plan downgrades, or for unused Accounts.
13.5 We may offer you a free Account with limited features designed to allow you to evaluate the Service and make sure it is right for you before signing up for a paid Plan.
13.6 For any upgrade or downgrade in Plan level, the credit card that you provided will automatically be charged the new Fee on your next Plan billing cycle. Please ensure that this credit card will not be declined. If your credit card expires and you do not cancel your Account, you will remain responsible for paying the Fee, which will accrue to your Account until we receive a cancellation notice. You are responsible for ensuring that the email address you provide is valid and checked regularly.
13.7 All fees are GST exclusive. If you are located outside Australia you will not be charged GST. You are responsible for all taxes, levies, or duties imposed by taxing authorities in your own country, and you shall be responsible for payment of all such taxes, levies, or duties. Coassemble has no responsibility to pay taxes, levies or duties on your behalf.
13.8 The Fees are subject to change upon 30 days’ notice from us to you and will apply to the next Plan billing cycle. Such notice may be provided at any time by posting the changes on our Site, via email or via a notification within Platform. If Customer does not agree to the Fee change, it may terminate this Agreement in accordance with clause 20.1. Notice and opportunity to terminate must be given. Also such change can only apply to next Plan billing cycle.
13.9 If there is a Variation, Coassemble will include the Variation Fees due and payable for the Variation performed in invoice(s) subsequent to the performance of any Variation.
13.10 If any payment has not been made in accordance with the Payment Terms, Coassemble may (at its absolute discretion):
a) immediately cease providing the Services, and recover as a debt due and immediately payable from the Customer its Additional Costs of doing so;
b) charge interest at a rate equal to the Reserve Bank of Australia’s cash rate from time to time plus 8% per annum, calculated daily and compounding monthly, on any such amounts unpaid after the due date;
c) engage debt collection services and/or commence legal proceedings in relation to any such amounts; and/or
d) report the Customer to any independent credit data agencies.
14.1 Subject to clause 14.2, each Party must (and must ensure that its Personnel do):
a) keep confidential; and
b) not use or permit any unauthorised use of,
all Confidential Information.
14.2 Clause 14.1 does not apply where:
a) the information is in, or comes into, the public domain (other than by a breach of this clause 14 by the relevant Party);
b) the relevant Party has the prior written consent of the Party that disclosed the Confidential Information;
c) the disclosure is required by law;
d) the disclosure is required in order to comply with this Agreement, provided that the Party disclosing the Confidential Information ensures the recipient complies with the terms of this clause 14; and
e) the disclosure is to a professional adviser in order to obtain advice in relation to matters arising in connection with this Agreement and provided that the Party disclosing the Confidential Information ensures the adviser complies with the terms of this clause 14.
14.3 Each Party acknowledges and agrees that monetary damages may not be an adequate remedy for a breach of this clause 14. A Party is entitled to seek an injunction, or any other remedy available at law or in equity, at its discretion, to protect itself from a breach (or continuing breach) of this clause 14.
14.4 This clause 14 will survive the termination or expiry of this Agreement.
15 Intellectual Property Rights
15.1 A Party’s ownership of, or any right, title or interest in, any Intellectual Property Rights in an item which exists prior to the Effective Date (Pre-Existing Material) will not be altered, transferred or assigned by virtue of this Agreement. Any material provided through the content library on the Platform remains copyright of the originator of the material. This applies to any of our courses, or material provided by other parties.
15.2 The Customer grants to Coassemble a non-exclusive, royalty free, non-transferable and revocable licence to use any of the Customer’s Intellectual Property Rights including any Pre-Existing Material as reasonably required for Coassemble to provide the Services to the Customer.
15.3 We claim no Intellectual Property Rights over the content of the material you use to create courses using the Service. Your profile and materials uploaded remain yours. However, by setting your content to be shared publicly (through shareable weblinks, via SCORM, packages or Learning Tools Interoperability (LTI), or by providing access for other users and students to access your account), you agree to allow others to view and share your content.
15.4 We do not screen content, but we have the right (but not the obligation) in our sole discretion to refuse or remove any content that is available via the Service that we deem inappropriate, illegal, offensive, threatening, libellous, defamatory, pornographic, obscene, or otherwise objectionable or violate any party’s Intellectual Property Rights or this Agreement.
15.5 If you believe that material located on or linked to by users of the Services violates your copyright, you are encouraged to notify us. We will respond to all such notices in the appropriate manner, including as required or appropriate by removing the infringing material or disabling all links to the infringing material.
15.6 We have the discretion (but not obligation) to terminate a Customer’s access to and use of the Services if, we determine that Customer or its Authorised Users are repeat infringers of the Intellectual Property Rights of us or third parties.
15.7 Any Intellectual Property Rights created as a result of Development & Design Services (Foreground Material) will vest in Coassemble on creation and the Customer must promptly do any acts reasonably requested by Coassemble for the Intellectual Property Rights in the Foreground Material to vest in Coassemble.
15.8 This clause 15 will survive the termination or expiry of this Agreement.
16.1 Each Party agrees to (and agrees to ensure its Personnel) comply with its obligations under the Privacy Act 1988 (Cth) and, any other privacy and data protection laws applicable to it, such as the European Union General Data Protection Regulation (EU) 2016/679 (the GDPR). If the Customer is required to comply with the GDPR and requires that Coassemble act as a data processor, the Customer may request and Coassemble may agree (in its sole discretion) to provide a data processing addendum (DPA). On execution of a DPA, the DPA will supplement and form part of this Agreement.
16.3 This clause 16 will survive the termination or expiry of this Agreement.
17 Representations and Warranties
17.1 Each Party represents and warrants to each other Party:
a) it has full legal capacity and power to enter into this Agreement, to perform its obligations under this Agreement, to carry out the transactions contemplated by this Agreement, to own its property and assets and to carry on its business;
b) no Insolvency Event has occurred in respect of it;
c) this Agreement constitutes legal, valid and binding obligations, enforceable in accordance with its terms; and
d) the execution and performance by it of this Agreement and each transaction contemplated by it does not conflict with any law, order, judgment, rule or regulation applicable to it or any document binding on it;
17.2 Coassemble warrants that to the best of its knowledge the Services do not infringe the Intellectual Property Rights of any third party and there are no actual or threatened proceedings for any intellectual property infringements in relation to the PaaS services.
17.3 Coassemble does not warrant that the Services will be error-free or will operate without interruption or that, except as set out in this Agreement, the Services will be performed in the manner intended by the Customer or the Services will meet the requirements of the Customer.
17.4 Each Party makes the representations and warranties in clause 17.1 on each day on which it is a Party.
18 Indemnity and liability
18.1 Coassemble is liable for the acts and omissions of all its Personnel as if they were done by Coassemble.
18.2 Despite anything to the contrary (but subject to clause 18.3), to the maximum extent permitted by the law:
a) Coassemble’s maximum aggregate Liability arising from or in connection with this Agreement (including the Services or the subject matter of this Agreement) will be limited to, and must not exceed, in any Contract Year, the total amount of Fees paid to Coassemble in the prior Contract Year; and
b) Coassemble will not be liable to the Customer for any loss of profit (including anticipated profit), loss of revenue, loss of business, loss of goodwill, loss of opportunity, loss of savings (including anticipated savings), loss of reputation, loss of use and/or loss or corruption of data,
whether under statute, contract, equity, tort (including negligence), indemnity or otherwise.
18.3 Clause 18.2 will not apply to Coassemble’s Liability to the Customer under this Agreement for any liability which cannot be excluded or limited by applicable law, including:
a) fraud or criminal conduct; or
b) death or personal injury.
18.4 Despite anything to the contrary, to the maximum extent permitted by the law, Coassemble will have no Liability, and the Customer releases and discharges Coassemble from all Liability, arising from or in connection with any:
a) failure or delay in providing the Services; or
b) breach of this Agreement,
where caused or contributed to by any:
Force Majeure Event;
a fault or defect in any item of the Customer Environment; or
act or omission of the Customer or its Personnel.
18.5 Coassemble uses third-party service providers to host the Services. Coassemble will not be liable for any interruption to the Services, unavailability or outage, or any interruption, unavailability or outage of the Customer’s Systems, caused by any such third-party service provider.
18.6 The Customer agrees that, to the maximum extent permitted by the law, this Agreement excludes all terms, conditions and warranties implied by statute, in fact or on any other basis, except to the extent such terms, conditions and warranties are fully expressed in this Agreement.
18.7 This Clause 18 will survive the termination or expiry of this Agreement.
19.1 The Term of this Agreement takes effect on and from the Effective Date and continues for the Term of your Plan unless this Agreement is terminated earlier in accordance with the terms of this Agreement.
Termination by Customer
20.1 The Customer may terminate this Agreement and its Account at any time, and you will continue to have access to your Account and the Services through the end of your current Plan billing cycle.
20.2 To terminate this Agreement and your Account, you must follow the appropriate procedure set out on the Site, however you will not be refunded any part of the Fee for any unused portion of the Plan billing cycle in which you terminate, because you continue to have access to the Services to the end of your current Plan billing cycle. You are solely responsible for properly cancelling your Account.
Termination by Coassemble
20.3 Verbal, physical, written, or other abuse (including threats of abuse or retribution) of any Coassemble customer, employee, member, or officer by Customer or its Authorised Users will result in immediate Account termination.
20.4 Coassemble may terminate this Agreement by giving at least 15 Business Days’ notice to the Customer if the Customer is in breach (other than a trivial breach causing no material harm) of any provision of this Agreement and, where the breach is capable of remedy, the Customer has failed to remedy the breach within 15 Business Days of receipt of written notice from Coassemble describing the breach and calling for it to be remedied.
20.5 Coassemble may terminate this Agreement immediately by giving written notice to the Customer where:
20.6 the Customer (or any of its Personnel) breaches clauses 9.3 or 10 of this Agreement;
20.7 the Customer fails to provide Coassemble with clear or timely instructions or information to enable Coassemble to provide the Services;
20.8 the Customer is unable to pay its debts as they fall due;
20.9 the Customer undergoes a change of control to a competitor of Coassemble as determined by Coassemble;
20.10 an Insolvency Event occurs in relation to the Customer; or
20.11 the Customer commits a breach of this Agreement and that breach has not been remedied within  Business Days of being notified by Coassemble.
20.12 Coassemble may suspend overdue accounts without notice to the Customer. A $300 reinstatement charge applies to reactivate any suspended account once full payment has been received.
21 Events Following Termination
21.1 Upon termination of this Agreement, Coassemble will:
a) deactivate or delete the Customer’s Account, which will result in the forfeiture and relinquishment of all content and reporting data in the Customer’s Account;
b) immediately stop performing the Services;
c) immediately stop placing orders for supplies or services required in connection with the performance of the Services; and
d) promptly return to the Customer or destroy all property, including Confidential Information, Intellectual Property and Data in its possession that belongs to the Customer or, retain your content and reporting data for a period time permitted by law. This information will be accessible should you reactivate your Account.
21.2 Upon termination of this Agreement, the Customer will immediately:
a) cease any use of the Services;
b) return to Coassemble all property, including Confidential Information and Intellectual Property, in its possession that belongs to Coassemble; and
c) pay the Fees for all Services completed up until the date of termination.
21. 3 The expiry or termination of this Agreement for any reason will be without prejudice to any rights or liabilities which have accrued prior to the date of expiry or termination of this Agreement.
21.4 This clause 21 will survive the termination or expiry of this Agreement.
22 Dispute Resolution
22.1 A Party must not commence court proceedings relating to any dispute arising from, or in connection with, this Agreement (Dispute) without first complying with this clause 22 unless:
that Party is seeking urgent interlocutory relief; or
the Dispute relates to compliance with this clause.
22.2 Notwithstanding the existence of a Dispute, the Parties must continue to perform their obligations under this Agreement.
22.3 In the event of a Dispute, the Party claiming there is a Dispute must give written notice to the other Party or Parties to the Dispute setting out the details of the Dispute and proposing a resolution (Dispute Notice).
22.4 Within 10 Business Days after receipt of the Dispute Notice, each relevant Party must (if applicable by its senior executives or senior managers who have authority to reach a resolution on its behalf) meet at least once to attempt to resolve the Dispute in good faith. All aspects of every such conference, except for the occurrence of the conference, will be privileged.
22.5 If the relevant Parties are unable to resolve the Dispute with 15 Business Days after receipt of the Dispute Notice, any Party involved in the Dispute may (by written notice to the other Parties):
a) where the Customer is incorporated, or as an individual or other entity habitually located, in Australia, refer the matter to a mediator. If the Parties cannot agree on who the mediator should be, either Party may ask the Law Society of New South Wales to appoint a mediator. The mediator will decide the time, place and rules for mediation. The Parties agree to attend the mediation in good faith, to seek to resolve the Dispute. The costs of the mediation will be shared equally between the Parties. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in New South Wales and any courts entitled to hear appeals from those courts and waives any right to object to proceedings being brought in those courts; or
b) where the Customer is incorporated, or as an individual or other entity habitually located, outside Australia, refer the matter to arbitration in accordance with the American Arbitration Association Rules. The seat of arbitration shall be Sydney, New South Wales. The number of arbitrators shall be one. The costs of the arbitration will be shared equally between the Parties and the determination of the arbitrator will be final and binding.
22.6 If the Dispute has not been settled within 20 Business Days after the appointment of a mediator, or such other period as agreed in writing between the Parties, the Dispute may be referred by any Party involved in the Dispute (by written notice to the other Parties) to litigation.
22.7 This clause 22 will survive the termination or expiry of this Agreement.
23.1 The Parties agree Coassemble may engage subcontractors to perform the Services on its behalf.
24.1 Each Party will effect and maintain at its own expense relevant insurance policies.
25.1 The Customer will not solicit or entice away, any person or organization that was an actual or prospective, client, employee, contractor, representative, agent of, or developer to, Coassemble, during the Term of this Agreement.
25.2 This clause 25 will survive the termination or expiry of this Agreement.
26.1 If GST is payable on any supply made under this Agreement, the recipient of the supply must pay an amount equal to the GST payable on the supply. That amount must be paid at the same time that the consideration is to be provided under this Agreement and must be paid in addition to the consideration expressed elsewhere in this Agreement, unless it is expressed to be inclusive of GST. The recipient is not required to pay any GST until the supplier issues a tax invoice for the supply.
26.2 If an adjustment event arises in respect of any supply made under this Agreement, a corresponding adjustment must be made between the supplier and the recipient in respect of any amount paid by the recipient under this clause, an adjustment note issued (if required), and any payments to give effect to the adjustment must be made.
26.3 If the recipient is required under this Agreement to pay for or reimburse an expense or outgoing of the supplier, or is required to make a payment under an indemnity in respect of an expense or outgoing of the supplier, the amount to be paid by the recipient is to be reduced by the amount of any input tax credit in respect of that expense or outgoing that the supplier is entitled to.
26.4 The terms “adjustment event”, “consideration”, “GST”, “input tax credit”, “recipient”, “supplier”, “supply”, “taxable supply” and “tax invoice” each has the meaning given in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
26.5 This clause 26 will survive the termination or expiry of this Agreement.
27.1 A notice or other communication given under this Agreement must be:
in writing, in English and signed by the sender; and
addressed and delivered to the intended recipient by hand, prepaid post or email in accordance with the notice details last notified by the recipient to the Parties.
27.2 Customer’s notice details are set out in the Account. Coassemble’s notice details are set out on the Site. A Party may change its notice details by written notice to the other Parties, which, for the Customer, is by updating their Account, and for Coassemble, is by updating the Site.
27.3 A notice or communication is taken as having been given:
when left at a Party’s current address for notices;
if mailed, on the third Business Day after posting (if delivered to an address within the same country) or on the tenth Business Day after posting (if delivered to an address within another country); or
if sent by email, if sent before 5pm on a Business Day in the place of receipt then on the Business Day when it is sent, otherwise on the following Business Day.
27.4 This subclause will survive the termination or expiry of this Agreement.
27.5 If performance of this Agreement or any obligation under this Agreement is prevented, restricted or interfered with by reasons of Force Majeure and the affected party unable to carry out its obligations gives the other party prompt written notice of such event, then the obligations of the affected party invoking this provision shall be suspended to the extent necessary by such event. The affected party shall use reasonable efforts under the circumstances to remove such prevention, restriction or interference or to limit the impact of the event on its performance and must continue to perform with reasonable dispatch when the Force Majeure is removed.
27.6 Any failure or delay by a Party in exercising a power or right (either wholly or partially) in relation to this Agreement does not operate as a waiver or prevent that Party from exercising that power or right or any other power or right. A waiver must be in writing.
Powers, rights and remedies
27.7 Except as provided in this Agreement or permitted by law, the powers, rights and remedies of a Party under this Agreement are cumulative and in addition to any other powers, rights and remedies the Party may have.
Consents or approvals
27.8 Except as provided in this Agreement, a Party may give, attach conditions to or withhold any consent or approval under this Agreement at its sole and absolute discretion. A Party is not obliged to give reasons for giving or withholding its consent or approval or for giving its consent or approval subject to conditions.
27.9 No Party may assign, transfer or otherwise deal with all or any of its rights or obligations under this Agreement without the prior written consent of the other Parties. Any purported dealing in breach of this clause 27.10 is of no force or effect.
27.10 Each Party must promptly do all things and execute all further documents necessary to give full force and effect to this Agreement and their obligations under it. This subclause will survive the termination or expiry of this Agreement.
Costs and expenses
27.11 Each Party must pay its own costs and expenses (including legal costs) in connection with the negotiation, preparation and execution of this Agreement and any document relating to it.
Relationship of Parties
27.12 This Agreement is not intended to create a partnership, joint venture or agency relationship between the Parties.
27.13 Nothing in this Agreement gives a Party authority to bind any other Party in any way.
Independent legal advice
27.14 Each Party acknowledges and agrees that it has had an opportunity to read this Agreement, it agrees to its terms and, prior to executing it, it has been provided with the opportunity to seek independent legal advice about its terms.
27.15 If a provision of this Agreement is held to be void, invalid, illegal or unenforceable, that provision must be read down as narrowly as necessary to allow it to be valid or enforceable.
27.16 If it is not possible to read down a provision (in whole or in part), that provision (or that part of that provision) is severed from this Agreement without affecting the validity or enforceability of the remainder of that provision or the other provisions in this Agreement.
27.17 This Agreement contains the entire understanding between the Parties, and supersedes all previous discussions, communications, negotiations, understandings, representations, warranties, commitments and agreements, in respect of its subject matter.
27.18 We may, at any time and at our discretion, vary this Agreement by publishing varied terms on the Site. Such variation will take effect at the commencement of the next Plan billing cycle.
27.19 This Agreement may be executed in any number of counterparts that together will form one document.
Governing law and jurisdiction
27.20 This Agreement is governed by the laws of New South Wales. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in New South Wales and any courts entitled to hear appeals from those courts and waives any right to object to proceedings being brought in those courts.
27.21 You agree that we may advertise or publicise the broad nature of our provision of the Services to you, including by displaying your name and logo on our website or in our promotional materials.
28 Definitions and Interpretation
In this Agreement, unless the context otherwise requires:
Additional Costs means any additional costs, expenses, damages or losses suffered or incurred by Coassemble.
Authorised User means the user(s) permitted to use the PaaS Services in accordance with the Plan specified in the Customer Account, or such other users identified by Coassemble through an audit, including additional Authorised Users.
Business Day means a day on which banks are open for general banking business in New South Wales, excluding Saturdays, Sundays and public holidays.
Business Hours means 9am to 5pm on a Business Day.
Change in Control occurs in respect of a Party if, after the Effective Date, a person acquires (directly or indirectly):
(a) shares in that Party conferring alone or in aggregate 50% or more of the voting or economic interests in that Party on a fully diluted basis;
(b) the power to control the appointment or dismissal of a majority of the directors of that Party; or
(c) the capacity to control the financial and operating policies or management of that Party.
Claim means any actual, contingent, present or future claim, demand, action, suit or proceeding for any Liability, restitution, equitable compensation, account, injunctive relief, specific performance or any other remedy of whatever nature and however arising, whether direct or indirect, and whether in contract, tort (including but not limited to negligence) or otherwise.
Confidential Information includes information or documentation which:
(a) is disclosed to the recipient in connection with this Agreement (whether before or after the Effective Date);
(b) is prepared or produced under or in connection with this Agreement (whether before or after the Effective Date); or
(c) relates to:
(1) the business, assets or affairs of a Party or any of its Affiliates;
(2) the business, assets or affairs of a Group Company, or any client of a Group Company; or
(3) the subject matter of, the terms of and/or any transactions contemplated by this Agreement,
whether or not such information or documentation is reduced to a tangible form or marked in writing as “confidential”, and whether it is disclosed to the recipient or received, acquired, overheard or learnt by the recipient in any way whatsoever.
Contract Year means a 12-month period commencing on: (i) the Effective Date; and (ii) each subsequent anniversary of the Effective Date, of this Agreement during the Term.
Customer Environment means the computing environment of the Customer including all hardware, software, information technology and telecommunications services and Systems.
Data means all of the information, documents and other data provided by the Customer or their Personnel to Coassemble, any content uploaded by the Customer or Personnel to Coassemble’s Platform System, or otherwise accessed by Coassemble in providing the Services.
Development Fee means the fee agreed by the Parties for any Development Services in accordance with clause 5.
Development Services means the services to be provided by Coassemble pursuant to this Agreement for the development of the additional functionality relating to the PaaS Services.
Dispute has the meaning given in clause 22.1.
Dispute Notice has the meaning given in clause 22.3.
Agreement means these terms and conditions.
Fee means the fee set out in on the Site.
Force Majeure means any event or circumstances beyond the reasonable control of a Party including any fire, lightning strike, flood, earthquake, natural disaster, sabotage, nuclear contamination, terrorism, war or civil riot that occurs to the extent that it:
(a) would be unreasonable to expect the affected Party to have planned for, avoided or minimised the impact of such circumstance by appropriate risk management, disaster recovery or business resumption plan; and
(b) results in a Party being unable to perform an obligation under this Agreement on time.
Insolvency Event means the occurrence of any one or more of the following events in relation to a Party:
(a) the Party is or states that it is insolvent or is deemed or presumed to be insolvent under any applicable laws;
(b) an application or order is made for the winding up, bankruptcy or dissolution of the Party or a resolution is passed or any steps are taken to pass a resolution for its winding up or dissolution;
(c) an administrator, provisional liquidator, liquidator or person having a similar or analogous function under the laws of any relevant jurisdiction is appointed in respect of the Party or any action is taken to appoint any such person and the action is not stayed, withdrawn or dismissed within 10 Business Days;
(d) a controller is appointed in respect of any of the Party’s property;
(e) the Party is deregistered under the Corporations Act or other legislation or notice of its proposed deregistration is given to it;
(f) a distress, attachment or execution is levied or becomes enforceable against the Party or any of its property;
(g) the Party enters into or takes action to enter into an arrangement, composition or compromise with, or assignment for the benefit of, all or any class of its creditors or members or a moratorium involving any of them;
(h) a receiver or manager (or both) or trustee in bankruptcy is appointed in respect of the Party or its property;
(i) a petition for the making of a sequestration order against the estate of the Party is presented and the petition is not stayed, withdrawn or dismissed within 10 Business Days or the Party presents a petition against itself; or
(j) anything analogous to or of a similar effect to anything described above under the law of any relevant jurisdiction occurs in respect of the Party.
Intellectual Property Rights means all present and future rights to:
(b) registered or unregistered designs, patents, trade marks;
(c) trade, business, company or domain names;
(d) know-how, inventions, processes, trade secrets;
(e) circuit layouts, databases or source codes; and
(f) any similar rights in any part of the world,
including any application, or right to apply, for registration of, and any improvements, enhancements or modifications of, the foregoing.
Liability means any expense, charge, cost, liability, loss, damage, claim, demand or proceeding (whether under statute, contract, equity, tort (including negligence), indemnity or otherwise), howsoever arising, whether direct or indirect and/or whether present, unascertained, future or contingent.
Party means a party to this Agreement from time to time, and Parties means all of them.
Personnel means in relation to a Party, any employee, contractor, officer and agent of that Party.
PaaS Licence is defined in clause 3.1.
PaaS Services means the Software as a platform learning management Service described in on the Site.
Plan means the applicable monthly, quarterly or annual Customer plan which provides for certain Service features and a number of Authorised Users tier.
Platform means the Coassemble learning management system platform for the creation of courses by the Customer and its Authorised Users.
Products means hardware or software.
Related Body Corporate has the meaning given in section 9 of the Corporations Act.
Services means the PaaS Services, Support Services and any Development Services, to be provided or licensed by Coassemble to the Customer on the terms and conditions set out in this Agreement.
Software means the software used to provide the Platform Services, and includes any instructions in hard copy or electronic form and any update, modification or release of any part of that software after this Agreement is entered into by the Parties.
System means a combination of Products or a combination of Products and services which are integrated and operate together, including a network.
Term means the term of this Agreement specified in the Customer Account.
Variation means a change to the Plan and or PaaS Licence after the date of this Agreement.
Variation Fee means any variation to the Fee as a consequence of the Variation.
In this Agreement, unless the context otherwise requires:
the singular includes the plural and vice versa;
headings are for convenience only and do not affect interpretation;
a reference to a clause, paragraph, schedule or annexure is a reference to a clause, paragraph, schedule or annexure, as the case may be, of this Agreement;
if any act which must be done under this Agreement is to be done on a day that is not a Business Day then the act must be done on or by the next Business Day;
a reference to any legislation or law includes subordinate legislation or law and all amendments, consolidations, replacements or re-enactments from time to time;
where a word or phrase is defined, its other grammatical forms have a corresponding meaning;
a reference to a natural person includes a body corporate, partnership, joint venture, association, government or statutory body or authority or other legal entity and vice versa;
includes and similar words mean includes without limitation;
no clause will be interpreted to the disadvantage of a Party merely because that Party drafted the clause or would otherwise benefit from it;
a reference to a party to a document includes that party’s executors, administrators, successors, permitted assigns and persons substituted by novation from time to time;
a reference to this Agreement or any other document includes the document, all schedules and all annexures as novated, amended, supplemented, varied or replaced from time to time;
a reference to a covenant, obligation or agreement of two or more persons binds or benefits them jointly and severally;
if a period of time is specified and dates from a given day or the day of an act or event, it is to be calculated exclusive of that day;
a reference to time is to local time in New South Wales, Australia; and
a reference to $ or dollars refers to the currency of the United States of America from time to time, unless otherwise indicated as referring to the currency of Australia, from time to time.
Last update: 7 April 2021