Apprenticeship On-Boarding Kit Terms + Conditions
1. PURPOSE OF THIS DOCUMENT
1.1 This document sets out the terms and conditions of use of the Apprenticeship On-Boarding Kit (Kit).
1.2 The Kit is a set of documents which you may access and download free of charge from our Website or Platforms for your organisation’s internal use only. Currently the Kit documents include:
1.2.1 Employment Contract for Front Line Apprentices/Trainees;
1.2.2 Information Technology Policy;
1.2.3 Code of Conduct; and
1.2.4 Drug and Alcohol Policy,
(collectively, the Documents). We may, at our absolute discretion, amend, replace, change, or withdraw documents from the Kit at any time.
1.3 These terms and conditions do not apply to any other NSWBC services you may elect to use which have their own applicable terms and conditions.
1.4 This document comprises Product + Services Conditions for the purposes of any relevant the Platform Access Conditions on our Website(s).
2. LICENCE + ACCESS
2.1 Upon signing up to receive the Kit, you will be provided with free electronic access to the Kit Documents via email, our Website, Platforms or other methods, as applicable.
2.2 We authorise you and your Authorised Users to use the Kit for the Permitted Purpose on and from the Commencement Date.
2.3 We grant you and your Authorised Users a non-exclusive, non-transferrable right and licence to view, download, edit, print out and use the Kit Documents materials for your organisation’s internal purposes but only with respect to the relationship between your business and its apprentices or employees, provided that you do not remove any copyright, attribution or trade mark notices contained on the Documents (Licence).
2.4 Under the Licence and these terms and conditions, you and your Authorised Users must not do or permit any of the following:
2.4.1 assign, sell, exploit, commercialise, transfer, make available, create derivative versions (except to the extent contemplated by the relevant document or template), retransmit, upload, post, distribute, grant licenses of, market, rent, lease or hire out to any third party any of your rights in respect of the Kit;
2.4.2 provide the Kit Documents or electronic copies of the same for the use by a third party directly or indirectly;
2.4.3 use or permit the use of the Kit Documents for any third party training or for similar activities; or
2.4.4 use the Kit other than as expressly permitted by these terms and conditions.
2.5 When you access the Kit, you must provide us with accurate information in response to any of the questions that we may ask in connection with providing you with the Kit.
3.1 Because the legal environment is continually changing, we do not make any representation or warranty that the Kit Documents will be reliable, accurate or complete, nor do we accept any responsibility arising in any way from errors or omissions and we make no commitment to update the Kit Documents. You acknowledge that we are not responsible or liable for your use or amendment of the Documents.
3.2 We do not undertake any obligation to consider whether any information provided through the Kit or the Services is either sufficient or appropriate for your circumstances.
3.3 You acknowledge that the Kit and the Services do not provide legal advice nor are they a substitute for the same and are provided for your information only. You should make your own enquiries and take independent professional advice tailored to your specific circumstances prior to making any decisions in respect of the Services.
3.4 You acknowledge that by using the Services, you consent and agree that we:
3.4.1 may collect and use customer data about you and your use of the Services; and
3.4.2 may collect, use, transmit, process and maintain information related to your account and any devices or computers registered or used for the purposes of providing or receiving the Services.
3.5 To the extent permissible by applicable law, we do not guarantee or warrant that any content or data you may store or access by your use of the Services will not be subject to inadvertent damage, corruption, loss, delayed access or removal and, subject to clause 10, we shall not be responsible should such damage, corruption, loss, delayed access or removal occur.
4. YOUR OBLIGATIONS
4.2 You are solely responsible for the appropriate use and adaption of the Documents and our Know-How for your own use.
4.3 You must inform all Authorised Users (and any other persons authorised to access or view the Know How under this Licence) that the Services are not legal advice nor a substitute for it.
4.4 You are responsible for configuring your own information technology, computer programs and platforms in order to access the Services.
4.5 You must:
4.5.1 not onsell the Kit Documents to any third party;
4.5.2 protect the Kit Documents, Know-How and Software from misuse, damage, destruction or any unauthorised use;
4.5.3 supervise and control the use of the Kit Documents, Know-How and Software in accordance with the terms of this Licence; and
4.5.4 if requested by us, issue a notice in a form approved by us to all Authorised Users advising of your obligations under this Licence and requiring those Authorised Users to take any steps necessary to enable you to comply with those obligations.
4.6 You acknowledge that your use of the Services may involve or result in the storage and/or capture by us or our contractors or service providers of data and content that you input, provide or make available.
4.7 This data and content may include data and content which is subject to relevant privacy, data protection and other laws.
4.8 You must ensure that you comply with all laws applicable to the data and content which you input, provide or make available.
4.9 To the greatest extent permissible by applicable law, we do not guarantee or warrant that any content or data you may store or access by your use of the Services will not be subject to inadvertent damage, corruption, loss, delayed access or removal and subject to clause 10 we shall not be responsible should such damage, corruption, loss, delayed access or removal occur.
4.10 You understand that by using the Services, you consent and agree to the collection and use of certain information about you and your use of the Kit. You further consent and agree that we may collect, use, transmit, process and maintain information related to your account and any devices or computers registered for the purposes of providing the Services.
4.11 Information collected by us when you use the Services may also include technical or diagnostic information related to your use that may be used by us to support, improve and enhance our products and services.
4.13 You agree to indemnify us and keep us indemnified from any loss, liability, damage, claim or expense which we may directly or indirectly suffer or incur in consequence of damage, corruption, loss, delayed access or removal of data or content and in respect of any breach of any law or obligation by you relating to privacy or data protection.
5. USE OF THE PLATFORM
5.1 Notwithstanding any other provision in these terms and conditions, we reserve the right to cancel this Licence or to change, suspend, remove, or disable access to the Platforms, or other materials comprising a part of the Platforms, at any time without notice. In no event will we be liable (subject to clause 10) for making these changes. We may also impose limits on the use of or access to certain or all features or portions of the Platforms (including the Kit), in any case and without notice or liability. We may withdraw the Kit and prevent its use by you at any time without notice.
5.2 We are not liable for:
5.2.1 any loss of data;
5.2.2 misuse, incorrect or unauthorised access to the Kit Documents, Know How or Services by your employees, clients, Authorised Users or third parties;
5.2.3 prosecutions, law suits, penalties or claims by any employees, contractors, third parties or regulators arising from or in connection with your use of the Kit;
5.2.4 advice, information or materials you give to your company or your clients based on, related to or in any way in connection with the Kit, our Know How (whether permitted under this Licence or not),
and you indemnify us against all claims arising in relation to or connected with such losses.
5.3 It is your sole responsibility to ensure you have backed up or saved any Kit Documents to the extent you are permitted to do so under your Licence. We will not be obliged to grant you further access to the Platform or the Kit Documents after your Licence has expired or ceased.
5.4 You will comply in all respects with any applicable Platform Access Conditions from time to time in force.
5.5 If you fail, or we suspect on reasonable grounds that you have failed, to comply with any of the provisions of these terms and conditions, we, at our sole discretion, without notice to you may preclude access to the Kit Documents or the Platforms (or any part thereof).
5.6 You must provide us with accurate information in response to any of the questions that we ask in connection with the Kit. Subject to clause 10, you agree that we are neither responsible nor liable for any such decisions made by you in relation to your use of the Kit.
6.1 The parties acknowledge and agree that the Kit is provided for free pursuant to these terms and conditions, however other fees may be applicable should you require additional or bespoke documents, services, products or subscriptions that may be offered from time to time by us, NSW Business Chamber or its Affiliated Entities and Related Bodies Corporate.
We are not required to provide any support services in respect of or to update or provide new releases of the Kit. We are not required to ensure or maintain any compatibility of our Platforms with any particular hardware or software. The Kit is provided as an “as is” service.
8. AUDIT RIGHTS
8.1 On request by us, you must verify to us in writing that the Kit has been used by you in accordance with this Licence.
8.2 You must at your cost, assist us in connection with any reasonable audit. The rights of audit extend to inspecting your files, computer processors, equipment and facilities (including those of your Related Bodies Corporate) wherever situated and you grant us all rights of access as may be required or appropriate to give effect this the provisions of this clause 8.
9. WARRANTIES + REPRESENTATIONS
9.1 We do not warrant that the Services and our means of delivering them are compatible with your software or computer configuration.
9.2 Subject to the provisions of this Licence, we warrant that your use of the Services will not infringe upon any person’s Intellectual Property Rights.
9.3 We do not (subject to clause 10 and any relevant laws) warrant that:
9.3.1 the Kit is error-free or that such errors or defects may be corrected;
9.3.2 access to the Kit or our Platforms will be uninterrupted;
9.3.3 the results obtained from the Kit will be in accordance with your expectations; or
9.3.4 that the Kit will be fit for your particular purpose, or for any other purpose.
9.4 The interpretation of any statement contained in any warranty or representation in this Licence will not be restricted by reference to or inference from any other statement contained in any other warranty or representation.
10. STATUTORY GUARANTEES + LIMITATION OF LIABILITY
10.1 Certain provisions of the Competition and Consumer Act 2010 (Cth) and State, Territory or Commonwealth laws in Australia, as amended or replaced from time to time (collectively, ACL) provide consumers (as that expression is used in the ACL) and others with certain statutory rights in relation to goods and/or services acquired by those persons (collectively, the consumer guarantees).
10.2 Nothing in this Licence excludes, restricts or modifies or purports to have the effect of excluding, restricting, limiting or modifying any condition, warranty, term or consumer guarantee specified or contemplated by the ACL or our liability under any such condition, warranty, term or guarantee or gives rise to any liability on our part or qualifies our liability in each case to the extent the same is unlawful or not permitted.
10.3 Subject to clauses 10.2and 10.6, we do not give any guarantee, indemnity or warranty or make any representation of any kind, express or implied, with respect to the supply by us of any goods or services to any person, except as expressly set out in clause 10.2 of this Licence.
10.4 Subject to clauses 10.2and 10.6, our aggregate liability for breach of or liabilities under or in respect or in connection with this Licence and our duties at law and in equity (however arising) whether in contract, tort (including without limitation negligence), under statute, at common law, under any indemnity or guarantee and on any other basis is limited at our option to:
10.4.1 in the case of goods - the replacement of the goods, the supply of equivalent goods, the repair of the goods, the payment of the cost of replacing the goods or of acquiring equivalent goods; or
10.4.2 in the case of services - the supplying of the services again or the payment of the cost of having the services supplied again.
10.5 In no circumstances, but subject to clauses 10.2 and 10.6, will we be liable to you or your successors in title or permitted assignees for any Consequential Loss arising out of, in connection with or relating to the performance, breach, termination or non-observance of this Licence. Consequential Loss means any loss or damage suffered by a party to this Licence as a result of a breach of this Licence that cannot reasonably be considered to arise naturally from that breach. Each Party agrees that loss of profits, revenue, goodwill, bargain, opportunities, loss or corruption of data or loss of anticipated savings however and whenever occurring, will constitute Consequential Loss and none are in the contemplation of the Parties.
10.6 If section 23 of the ACL applies to any provisions in this Licence, any such provision(s) shall be void to the extent it is unfair within the meaning of section 24 of the ACL.
10.7 We are not a law firm. Nothing in the Services or in this Licence shall be construed or relied on as advertising or soliciting to provide any legal services, creating any solicitor-client relationship or providing any legal representation, advice or opinion whatsoever. You should make your own inquiries and take independent professional advice tailored to your specific circumstances prior to making any decisions or using the Kit.
10.8 You agree to indemnify and keep us indemnified against any and all losses, claims, expenses, damages, liabilities directly or indirectly, incurred by us, in relation to:
10.8.2 your use of the Kit;
10.8.3 any misleading or deceptive conduct by you or your Authorised Users; and
10.8.4 your or any of your Authorised Users’ non-compliance with any relevant laws.
11. INTELLECTUAL PROPERTY RIGHTS
11.1 You shall notify us in writing if you become aware of:
11.1.1 any infringement of any of our Intellectual Property Rights;
11.1.2 any defect in the Documents, Know-How or Software; or
11.1.3 any material matters that may be of concern us concerning the Kit or this Licence which come to your attention.
11.2 You acknowledge:
11.2.1 that copyright and all rights, title and interest in and to any and all Intellectual Property Rights the Documents, Know-How and associated materials (whether produced before or during the Licence) and that any enhancements, Modifications and derivative works, shall at all times be and remain the exclusive property of Australian Business Lawyers & Advisors Pty Ltd, an incorporated legal practice and wholly owned subsidiary of NSW Business Chamber, with a relevant licence granted to us for the purpose of the provision of this Kit and the Services to you (subject to limited rights of use by you and your Authorised Persons as contemplated by the Licence and these terms and conditions);
11.2.2 except as expressly provided for in this Licence, nothing set out in this Licence shall be construed as conferring to you or any other person any license or right, by implication or otherwise, under copyright or other Intellectual Property laws.
11.3 You acknowledge and agree that this Licence does not grant you, a third party or any other person or provide you or any other person with a proprietary interest in any Documents, Know-How or other materials including those created, modified, adapted, reproduced or derived by you from the Kit and materials pursuant to the terms of this Licence (subject to limited rights of use by relevant persons as contemplated by this Licence).
11.4 Subject to the provisions of this Licence, all rights, including but not limited to all Intellectual Property Rights related to or arising in respect of or concerning the grant of Licences, the Kit and our business (collectively, Relevant Rights), are expressly reserved to us and you must not use the Relevant Rights without our prior written consent. You shall acquire no Relevant Rights and must not claim ownership of or a right to use any Relevant Rights in any form or manner.
11.5 You must do all acts necessary or convenient to ensure that our proprietary interests (and that of NSWBC Related Bodies Corporate and Affiliated Entities) in and all Relevant Rights are secured, preserved and protected (and if requested, assigned) for our benefit at all times.
11.6 You must not do anything that will or is likely to damage or diminish the Relevant Rights or the reputation of NSW Business Chamber or its Affiliated Entities.
12.1 We may terminate this Licence by notice in writing to you if:
12.1.1 we decide to withdraw the Kit offer;
12.1.2 we end an applicable trial or evaluation period; or
12.1.3 you breach any term of this Licence and you do not remedy the default or breach (if capable of remedy) to our full satisfaction within 10 days after your receipt of a notice from us specifying the relevant breach; and
such termination becomes effective on the date that notice in writing is delivered to you.
12.2 Upon termination of this Licence neither Party will have any further obligations under this Licence other than:
12.2.1 in respect of any liability for antecedent breach; or
12.2.2 any liability in respect of provisions of this Licence which are expressed to continue in full force and effect notwithstanding termination.
12.3 Upon termination of this Licence under clause 12.1.2, you must immediately:
12.3.1 cease to use the Kit and procure that your employees and clients an any other third parties granted access to or rights to use the materials under this Licence cease to use the Kit;
12.3.2 promptly take such further steps as we may require to vest in us all our Intellectual Property Rights.
12.4 The following clauses of this Licence shall continue in full force and effect notwithstanding termination of this Licence: clauses 2 (Licence + Access), 8 (audit rights), 10 (statutory guarantees + limitation of liability) 11 (intellectual property rights), 12.2 to 12.4 inclusive (termination), 13 (assignment), 14 (governing law) and 15 (definitions).
13.1 You may not assign, dispose of or otherwise transfer this Licence or any rights or obligations under this Licence without our prior written permission.
13.2 We may assign, in part or in full, our rights under this Licence or the Licence without your consent.
13.3 Subject to this clause 13, this Licence shall be binding on the Parties and their respective successors and permitted assigns.
14. GOVERNING LAW
This Licence is governed by the laws of New South Wales which shall have exclusive jurisdiction with respect to any disputes.
15.1 Personal pronouns: Except where the context otherwise provides or requires:
15.1.1 the terms we, us or our refers to ABAC, a trading division on the NSW Business Chamber (or its assignee) as the Licensor; and
15.1.2 the terms you or your refers to the named permitted licensee of the Services and the person entering into this Licence (rights of access and use only being for its Authorised Users).
In this Licence, unless the context otherwise requires or provides:
ABAC means Australian Business Apprenticeships Centre being a trading division of NSW Business Chamber, also known as Apprenticeship Support Australia.
Affiliated Entities means NSW Business Chamber's subsidiaries, affiliates, brands, associated entities and relevant partners as the case may be or the context requires from time to time.
Authorised Users means any person employed or engaged by you that may in certain circumstances (subject to any relevant conditions or terms) have a right to access the Services.
Collection Notice means our Collection Notice provided in accordance with the Privacy Act 1988 (Cth) and available on the Platform.
Commencement Date means the date of acceptance by us of an Order Form or request for access to the Kit (whether submitted by email, hardcopy or via a Platform or Website).
Intellectual Property Rights means all present and future intellectual and industrial property rights (including but not limited to including copyright, registered patent, design, trade marks and confidential information, including know-how and trade secrets) subsisting in any and all media and materials (whether now known or created in the future and including for the purpose of this Licence, reproductions, adaptations, modifications and derivations of Know How), conferred by statute, at common law or in equity and wherever existing.
IT means information technology.
Know-How means know-how provided by us to you by use of the Service comprising the Kit Documents, before or during the Licence, and any material, methodologies, Software, know-how or procedures notified or provided to you.
Licence means the licence granted by us to you to access the Services for the Permitted Purpose on the terms and conditions referred to in this document, as more specifically described in clause 2.
Licensor means NSW Business Chamber or its assignee.
Modification means, in relation to the Software, any adaptation or derivative of the Software within the meaning of the Copyright Act 1968 (Cth).
NSW Business Chamber or NSWBC means NSW Business Chamber Limited (ACN 000 014 504) of 140 Arthur Street, North Sydney, NSW 2060.
Order Form means an order form (in which you accept the terms of this Licence) submitted by you (or on your behalf) to us and for these purposes includes an online form accessible via a Platform, an email or other relevant methods.
Parties means the Licensor and you.
Permitted Purpose means the purpose of accessing and using the Kit under the terms of the Licence, to the extent permitted by these terms and conditions.
Platform Access Conditions means the terms and conditions of access to the Platforms and any additional terms, conditions, notices and disclaimers displayed elsewhere on the Platforms, as amended from time to time.
Platforms means all or any of the relevant platforms, electronic interfaces and websites that are owned, provided and/or operated from time to time by ABAC, NSW Business Chamber or Affiliated Entities, regardless of how those websites are accessed by users (including via the internet, mobile phone or any other device or other means).
Related Bodies Corporate means as defined in the Corporations Act 2001 (Cth) and in the case of ABAC, also includes any entity in which NSWBC or any of its subsidiaries has an equity stake of 10% or more, or has a services agreement under which any such person is required to provide for the benefit of the other entity services or deliverables; or is connected to or operates under a brand or trademark (owned or under licence) of NSWBC or persons in which such a stake is held.
Services means the use of the Kit which comprises access to Know-How, the use of any Software via a Platform, for the Permitted Purpose and subject to these terms and conditions.
Software means the software provided by us or by our suppliers which enables you to use the Services.
Website means www.apprenticeonboardingkit.com.au and any other ABAC, NSWBC or its Related Bodies Corporate websites (including but not limited to http://www.apprenticeshipsupport.com.au/Home), as applicable.