Terms and Conditions
These Terms and Conditions were last updated on 5 June 2017.
Welcome to InfoTrain, an online Training Information and Management Service designed for Registered Training Organisations and training businesses. These Terms and Conditions are intended to explain our obligations as a service provider and Your obligations as a customer. Please read them carefully.
These Terms and Conditions are binding for any users or use of the Service and apply to You from the time that InfoTrain provides You with access to the Service.
The InfoTrain Service will change from time to time. These Terms and Conditions are not intended to answer every question or address every issue raised by the use of the InfoTrain Service. InfoTrain reserves the right to change these Terms and Conditions at any time, effective upon the publishing of modified Terms and Conditions on the InfoTrain website. InfoTrain will make every effort to communicate these changes to You via email or notification via the Website. It is likely the Terms and Conditions will change over time. It is Your obligation to ensure that You have read, understood and agree to the most recent Terms and Conditions available on the InfoTrain Website.
By registering, accessing or using the Service, You acknowledge that You have read and understood these Terms and Conditions and have the authority to act on behalf of any person for whom You are using the Service. You are deemed to have agreed to these Terms and Conditions on behalf of any entity who uses the Service.
1. Definitions and Interpretation
“Service” means the service provided by InfoTrain to the User.
“User” means any person who is a user of the Service.
“You” and “Your” means the User.
“Approval” means any certificate, licence, consent, permit, or other requirement of any authority having jurisdiction in connection with the activities contemplated in this Agreement.
“Authorised Personnel” means InfoTrain’s Developers, InfoTrain Support Representatives and Directors.
“InfoTrain” means InfoTrain Pty Ltd ABN 86 610 164 657 trading as ‘InfoTrain’.
“Business Days” means Monday to Friday, 9:00 am – 5:00 pm Australian Eastern Standard Time (AEST) except for public holidays.
“Anniversary Date” means the date Your InfoTrain account is activated and successful payment is made and Your login details are emailed to You and includes any and all InfoTrain products including but not limited to; Manage, Integrate, Enquire, Apply, Learn, Learn Analytics. The “Anniversary Date” is not the commencement of a Trial Account date.
“Confidential Information” includes all information exchanged between the parties to this Agreement, whether in writing, electronically or orally, including the Service but does not include information which is, or becomes, publicly available other than through unauthorised disclosure by the other Party.
“Data” means any data inputted by You or with Your authority into the Website.
“Dispute Notice” means a notice issued by one Party to the other Party giving notice of the dispute and the reasons for that dispute which are to be resolved within a fair and reasonable timeframe of the giving of the Dispute Notice.
“Fees” means InfoTrain’s Fees as outlined in the Schedule (which InfoTrain may change from time to time on notice to You).
“Force Majeure Event” means an act of God, national emergency, insurrection, riot, war or industrial action.
“GST” means a goods and services tax, or similar value added tax, levied or imposed under tax Laws.
“Intellectual Property Right” means any patent, trade mark, service mark, copyright, moral right, right in a design, know-how and any other intellectual or industrial property rights, anywhere in the world whether or not registered.
“Invited User” means any person or entity, other than the Subscriber, that uses the Service with the authorisation of the Subscriber from time to time.
“Law” or “Laws” means any law applicable including legislation, ordinances, regulations, by-laws and other subordinate legislation.
“Licence Fee” means the monthly or annual licence fee (excluding any taxes and duties) payable by You in accordance with the fee schedule available from InfoTrain.
“Material” means material in any form, including documents, reports, products, equipment, information, data, software, software tools and software development methodologies.
“Moral Rights” means all present and future rights of integrity of authorship, rights of attribution of authorship, rights not to have authorship falsely attributed and rights of a similar nature conferred by statute anywhere in the world.
“Personal Information” means information or an opinion (including information or an opinion forming part of a database), whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion which InfoTrain gains access to in the course of providing the Service.
“Privacy” means collection, handling, security and protection of personal, organisational and/or Party-related information including but not limited to InfoTrain user and/or database Records, files, mail, emails, documents, telephone conversations or Records, other forms of communication and/or other system-related information.
“Privacy Laws” means the Privacy Act 1988 (Cth), the Spam Act 2003 (Cth) and any other laws relating to Privacy.
“Records” means all material including but not limited to books, documents, information, computer software, equipment, and data stored by any means disclosed, or made available, by You to InfoTrain in connection with the performance of this Agreement.
“Release Notes” means the method of communication of all new features, improvements and bug fixes of the Software.
“Renewal Term” means extending the Agreement for an additional one month period from the anniversary date of the Agreement.
“Service” means providing the services and delivering the Deliverables, Support Services, and any other services set out in the Schedule (as may be changed or updated from time to time by InfoTrain) via the Website.
“Service Levels“ means the manner and the timeliness which requests for support by You are managed.
“Subscriber” means the person who registers to use the Service, and, where the context permits, includes any entity on whose behalf that person registers to use the Service.
“Tax” means any tax (including GST, sales tax, stamp duty, payroll and/or withholding tax), charges, fees, and other imposts of whatever kind (including any fine or penalty) that may be levied, assessed charged or collected.
“Website” means all hosted software applications including all upgrades and versions from the Internet site at the domain www.infotrain.com.au or any other site operated by InfoTrain.
“You” means the Subscriber, and where the context permits, an Invited User. “Your” has a corresponding meaning.
“Your Data” means any data, content, code, video, images or other materials of any type that you upload, submit or otherwise transmit to or through InfoTrain.
- In order to access the Service, You will be required to provide information (such as Your identification and Your contact details) as part of the registration process for the Service, or as part of your continued use of the Service (“Registration Information”). Once You have provided this information to InfoTrain, InfoTrain will provide You with Your Log-In information.
- InfoTrain will supply and You will use the Service on the terms of these Terms and Conditions.
- InfoTrain grants the User a non-exclusive, non-transferable licence to use the Service subject to these Terms and Conditions.
- You acknowledge and agree that You cannot make a request or claim any compensation with respect to any issue arising from or in connection with the functionality of the Service.
- You agree that in using the Service, You must comply with all reasonable directions with respect to the use of the Service, including the installation of updates, which may be issued by InfoTrain from time to time at its absolute discretion.
- You acknowledge that InfoTrain may terminate Your access to the Service at any time if it has reason to believe the terms of these Terms and Conditions have been breached.
InfoTrain grants You the right to access and use the Service via the Website and the right to create user roles and Invited Users according to Your business requirements. This right is non-exclusive, non-transferable, and limited by, and subject to, this Agreement. You acknowledge and agree that, subject to any applicable written agreement between the Subscriber and the Invited Users, or any other applicable Laws:
- the Subscriber determines who is an Invited User and what level of user role access permissions to the relevant InfoTrain functions that the Invited User has;
- the Subscriber is responsible for all Invited Users’ use of the Service;
- the Subscriber controls each Invited User’s level of access permissions to the relevant InfoTrain’s functions at all times and can revoke or change an Invited User’s access, or level of access permissions, at any time and for any reason, in which case that person or entity will cease to be an Invited User or shall have that different level of access, or different permissions, as the case may be;
- if there is any dispute between a Subscriber and an Invited User regarding access to any InfoTrain function, the Subscriber shall decide what access or level of access or permission to the relevant Data or function that the Invited User shall have, if any.
If InfoTrain grants You access to a Trial account as part of Your free trial evaluation of the Service, You agree to the following conditions:
- You agree to create and use a Trial account and be bound by all the Terms and Conditions contained in this Agreement; and
- You are under no obligation to continue to use the Service beyond the end of the Trial.
InfoTrain will provide You with secure online access to its’ web-based training information and management services that you have purchased from InfoTrain. The features of the service are displayed on the InfoTrain Website and are updated from time to time.
Access to InfoTrain services will be through an Internet hosted system provided by the Approved Party. With effect from the Commencement Date, InfoTrain will provide the Deliverables of the Service in the manner and at the times specified in the Schedule to this Agreement.
InfoTrain will notify You via the Website (Release Notes) or email all new features, improvements and bug fixes associated with the Service. You will be entitled, at no additional cost, to product enhancements as and when they are implemented in the InfoTrain services according to the Deliverables outlined in the Schedule. You will be notified, from time to time, of any significant new optional chargeable features via InfoTrain’s Update email newsletter (or Release Notes).
Support Services include the following support activities that are normally no longer than 10-15 minutes in duration:
- Brief clarification or explanation about an InfoTrain functional component;
- Assistance with issues during implementation;
- Assistance with configuration issues;
- Assistance with issues when implementing a new feature.
- Identifying and reporting InfoTrain bugs;
NOTE: There are no additional charges associated with any of the above Support Services.
InfoTrain must perform the Service:
- promptly, carefully and to the highest possible standards;
- within the time frames specified in this Agreement or as otherwise agreed between the Parties in a purchase order or in writing; and
- exercising all due care, skill and judgement, in an efficient, professional and cost effective manner and in accordance with accepted professional and business practices.
InfoTrain will develop all Website functions and features in accordance with its prescribed quality assurance process. InfoTrain will manage all requests for assistance, problem resolution and change requests through its’ customer Support Centre.
InfoTrain confirms that any and all provisions relating to privacy of information and storage and access of Data within this Agreement will be observed and upheld by InfoTrain’s third-party service providers.
InfoTrain confirms that in the event that it experiences an acquisition, or insolvency it will ensure that all Your Data remains Your property. You will have full physical and electronic access to Your Data which can be retrieved and transferred to Your choice of storage media. This same access is to be granted should either Party elect to terminate the Agreement. InfoTrain confirms that should it be acquired, purchased or taken over by another entity, this Agreement shall still be upheld.
- Payment obligations:
InfoTrain will provide the Service for the Fees outlined in the Schedule. You will pay InfoTrain the Fees at the time and in the manner outlined in the Schedule.
Failure to pay an invoice within 28 days of the invoice due date will result in suspension of Your account until payment has been received. In the event that Your account is suspended due to non-payment, the account will be reactivated immediately upon receipt of bank remittance advice of payment or actual payment, whichever is the sooner. You will be notified of an impending account suspension if Your due invoice has not been paid by the due date.
- Cancellation of Services:
InfoTrain requires a minimum of five (5) days notice of cancellation for any Services including product training in order for You to receive a full refund or credit for the hours that you have requested to be scheduled.
You warrant that where You have registered to use the Service on behalf of another person, You have the authority to agree to these Terms on behalf of that person and agree that by registering to use the Service You bind the person on whose behalf You act to the performance of any and all obligations that You become subject to by virtue of these Terms, without limiting Your own personal obligations under these Terms.
You must only use the Service and Website for Your own lawful internal business purposes, in accordance with these Terms and any notice sent by InfoTrain or condition posted on the Website. You may use the Service and Website on behalf of others or in order to provide services to others but if You do so You must ensure that You are authorised to do so and that all persons for whom or to whom services are provided comply with and accept all Terms of this Agreement that apply to You.
You acknowledge that You are authorised to use the Service and the Website and to access the information and Data that You input into the Website, including any information or Data input into the Website by any person You have authorised to use the Service. You are also authorised to access the processed information and Data that is made available to You through Your use of the Website and the Service (whether that information and Data is Your own or that of anyone else).
- Payment obligations:
You will retain all right, title and interest in and to Your Data in the form provided to InfoTrain. Subject to the Terms of this Agreement, you hereby grant to InfoTrain a non-exclusive, worldwide, royalty-free right to (a) collect, use, copy, store, transmit, modify and create derivative works of Your Data, in each case solely to the extent necessary to enable you to share Your Data or interact with other people, to distribute and publicly perform and display Your Data as You (or Your Invited Users) direct or enable through and InfoTrain product for which You have paid for access or otherwise been granted access by InfoTrain. InfoTrain may access Your accounts in order to respond to your support requests.
If You enable third-party applications for use in conjunction with the Service, You acknowledge that InfoTrain may allow the providers of those third-party applications to access Your Data as required for the interoperation of such third-party applications with the Service. InfoTrain shall not be responsible for any disclosure, modification or deletion of Your Data resulting from any such access by third-party application providers.
From time to time, there may be storage limits imposed on Your usage of the Website. InfoTrain reserves the right to charge for over-usage Fees where reasonable use of the Website has been exceeded. InfoTrain may impose new, or may modify existing, storage limits or data traffic usage at any time at our discretion, with or without notice to you.
InfoTrain warrants that all Your Data is stored on Australian soil.
You represent and warrant that: (i) You have obtained all necessary rights, releases and permissions to provide all Your Data to InfoTrain and to grant the rights granted to InfoTrain in this Agreement and (ii) Your Data and its transfer to and use by InfoTrain as authorised by You under this Agreement do not violate any Laws (including without limitation those relating to export control and electronic communications) or rights of any third party, including without limitation any intellectual property rights, rights of privacy, or rights of publicity, and any use, collection and disclosure authorized herein is not inconsistent with the terms of any applicable privacy policies. Other than its security obligations under clause 7.6.6 (Data Security), InfoTrain assumes no responsibility or liability for Your Data, and You shall be solely responsible for Your Data and the consequences of using, disclosing, storing, or transmitting it.
InfoTrain implements security procedures to help protect Your Data from security attacks. However, you understand that use of the Website necessarily involves transmission of Your Data over networks that are not owned, operated or controlled by InfoTrain, and we are not responsible for any of Your Data lost, altered, intercepted or stored across such networks. We cannot guarantee that our security procedures will be error-free, that transmissions of Your Data will always be secure or that unauthorised third parties will never be able to defeat our security measures or those of our third party service providers.
You will defend, indemnify and hold harmless InfoTrain from and against any loss, cost, liability or damage, including legal fees, for which InfoTrain becomes liable arising from or relating to any claim relating to Your Data, including but not limited to any claim brought by a third party alleging that Your Data, or Your use of InfoTrain services in breach of this Agreement, infringes or misappropriates the intellectual property rights of a third party or violates applicable Law. This indemnification obligation is subject to Your receiving (i) prompt written notice of such claim (but in any event notice in sufficient time for You to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense, or settlement of such claim; and (iii) all reasonable necessary cooperation of InfoTrain at your expense.
As a condition of these Terms, when accessing and using the Service, You must:
- not attempt to undermine the security or integrity of the Approved Party’s computing systems and networks;
- not use, or misuse, the Service in any way which may impair the functionality of the Service or Website, or other systems used to deliver the Service or impair the ability of any other user to use the Service or Website;
- not attempt to gain unauthorised access to any materials other than those to which You have been given express permission to access or to the computer system on which the Service is hosted;
- not transmit, or input into the Website, any: (i) files that may damage any other person’s computing devices or (ii) software, content that may be offensive, or (iii) material or Data in violation of any Law (including Data or other material protected by copyright or trade secrets which You do not have the right to use); and
- not attempt to modify, copy, adapt, reproduce, disassemble, decompile or reverse engineer any computer programs used to deliver the Service or to operate the Website except as is strictly necessary to use either of them for normal operation.
Unless the relevant Party has the prior written consent of the other or unless required to do so by Law:
- Each Party will preserve the confidentiality of all Confidential Information of the other obtained in connection with these Terms.
- Neither Party will, without the prior written consent of the other, disclose or make any Confidential Information available to any person, or use the same for its own benefit, other than as contemplated by these Terms.
- Each Party’s obligations under this clause will survive termination of this Agreement.
- The provisions of clauses 9.1 and 9.2 shall not apply to any information which:
- is or becomes public knowledge other than by a breach of this clause;
- is received from a third party who lawfully acquired it and who is under no obligation restricting its disclosure;
- is in the possession of the receiving party without restriction in relation to disclosure before the date of receipt from the disclosing party; or
- is independently developed without access to the Confidential Information.
Nothing in this Agreement affects existing right title and Intellectual Property Rights of You and InfoTrain in any material existing before the commencement of the Agreement. InfoTrain warrants that it has the right and authority to supply the Deliverables and to grant any licence or transfer ownership as applicable of Deliverables to You under and in accordance with the Terms of this Agreement. You acknowledge and agree that InfoTrain (or its licensors), owns the Intellectual Property Rights of the Website and any documentation relating to the Service. You will exclusively own all Intellectual Property Rights to Your Data. The title to and ownership of all Intellectual Property Rights in Your Data will vest immediately upon its creation in You. InfoTrain assigns to You all existing and future Intellectual Property Rights it has or may have in Your Data to the extent necessary for, and for the sole purpose of, performing this Agreement. This clause 11 will survive termination of this Agreement.
InfoTrain warrants that:
- it does not have a conflict of interest (actual, potential or perceived) under this Agreement;
- it has the necessary systems, skills, qualifications and approvals to provide the Service which is the subject of this Agreement;
- it has provided You with sufficient information to enable You to provide a suitable operating environment for use of the Website;
- all Custom Development work will perform to Your business requirements prior to final payment being made by You;
- it will resolve any defects of the Website as quickly as possible and in accordance with this Agreement;
- it holds, maintains and can provide evidence of broad form public liability and product liability insurance;
- it will comply with its obligations under the Privacy Laws;
- it will treat all Confidential Information in a confidential manner and ensure that the information is not disclosed, used, copied or reproduced except as agreed by You or as required by law; and
- it is solvent.
These warranties will remain in effect for the term of the Agreement.
InfoTrain has no responsibility to any person other than You and nothing in this Agreement confers, or purports to confer, a benefit on any person other than You. If You use the Service or access the Website on behalf of or for the benefit of anyone other than Yourself (whether a body corporate or otherwise) You agree that:
- You are responsible for ensuring that You have the right to do so;
- You are responsible for authorising any person who is given access to information or Data, and You agree that InfoTrain has no obligation to provide any person access to such information or Data without Your authorisation and may refer any requests for information to You to address; and
- You will indemnify InfoTrain against any claims or loss relating to:
- InfoTrain’s refusal to provide any person access to Your information or Data in accordance with these Terms; or
- InfoTrain’s making available information or Data to any person with Your authorisation.
When permitted by law, InfoTrain, and InfoTrain’s third-party partners, will not be responsible for lost profits, revenues, or Data, financial losses or indirect, special, consequential, exemplary, or punitive damages. To the extent permitted by Law, the total liability of InfoTrain, and InfoTrain’s third-party partners, for any claims under these Terms, including for any implied warranties, is limited to all Licence Fees paid during the previous 12 months (or, if we choose, to supplying you the services again). In all cases, InfoTrain, and its third-party partners, will not be liable for any loss or damage that is not reasonably foreseeable. If You are not satisfied with the Service, Your sole and exclusive remedy is to terminate this Agreement in accordance with this Agrement.
InfoTrain or third parties may, from time to time, make available to You, third-party services, including but not limited to add-ons, integrations, and plugins as well as implementation, customisation, training, and other consulting services. If You procure any of these third-party services, You do so under a separate agreement (and exchange of data) solely between You and the third-party vendor. InfoTrain does not warrant or support non- InfoTrain services, whether or not they are designated by InfoTrain as third-party partners, and disclaims all liability for such services. If You install or enable any third-party services for use with InfoTrain, You acknowledge that InfoTrain may allow the vendors of those services to access Your Data as required for the interoperation and support of such add-ons with InfoTrain. InfoTrain shall not be responsible for any disclosure, modification or deletion of Your Data resulting from any such access by third party add-on vendors.
The parties agree that in the event of a question, dispute or difficulty arising from the content of this Agreement, the matter shall be dealt with as follows:
The Party initiating the question, dispute or difficulty will provide the other Party with a letter or email detailing the specifics of the question, dispute or difficulty (Dispute Letter);
The matter will be initially discussed between InfoTrain and Your contact nominated in the Schedule within seven (7) business days of receipt of the Dispute Letter;
If the matter is not settled within seven (7) business days of the discussion referred to above it shall be referred to a commercial mediation group to try to resolve the issue;
Where mediation is not successful within ten (10) business days following the successful appointment of a mediator, either Party may commence proceedings in court provided that the prior steps referred to in this clause have been followed.
- InfoTrain will provide the Service to You for the Term of one month. You can extend the Agreement for the Renewal Term once the initial, one month Term has expired. If You do not notify InfoTrain of Your intention to terminate at least 5 days prior to Your anniversary date, Your agreement will be renewed for a further one month period.
- Deletion of Your Data at Termination:
InfoTrain may remove or delete Your Data from Your InfoTrain account within a reasonable period of time after the termination of this Agreement, or at a time agreed upon by You and InfoTrain.
This Agreement constitutes the entire Agreement of the parties about its subject matter and supersedes all previous Agreements, understandings and negotiations on that subject matter, whether orally or in writing.
This Agreement is governed by and construed in accordance with the law of Tasmania and the parties submit to the jurisdiction of the courts of Tasmania.