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Terms of Business
Last updated July 13th, 2023
Academy Xi Pty Ltd ABN 84 608 846 (‘AXi’) provides training, workforce development and consulting services to organisations. The provision of such services by AXi is governed by these Terms and Conditions (unless otherwise covered by a Services Agreement).
1. Terms and Their Meanings
The following words have the following meanings:
Services means the provision of services by AXi, including but not limited to any services in relation to the delivery of education and training programs, as specified in a SOW.
SOW (Statement of Works) means the written communication setting out the Services to be undertaken and the fees payable, including any applicable taxes, in respect to such Services and may include additional terms and conditions of trade.
We, our and us means AXi.
You and your means the entity which requests the Services from AXi or to which the Services are delivered by AXi.
2. Provision of Services
Our Services will be outlined in the SOW. The SOW can be accepted by email confirmation from you. Acceptance of the SOW will be considered as acceptance by you of these Terms and Conditions.
Provided that we receive your acceptance of the SOW within 30 days, we will use all reasonable endeavours to provide the Services in accordance with the SOW. The information contained in any SOW is valid for 30 days from the date of the SOW.
If you require additional Services to those outlined in the SOW after the SOW has been accepted by you, the additional Services will incur additional charges or fees. All additional charges or fees must be approved by you before we agree to provide you with the additional Services.
While we will endeavour to keep to our delivery dates as set out in our SOWs, any reasonable delay in delivery of any Services will not entitle you to claim for any loss, or provide you with a right to cancel, rescind or terminate the Agreement.
You agree to:
- provide us with all information that we may reasonably require in order to provide the Services to you;
- not unreasonably delay any approval or decision that you are required to make in order for us to provide Services to you; and
- notify us of any matter or thing that comes to your attention that is or may be material to the provision by us of the Services to you.
3. Payment
All fees payable by you to us for the Services shall be as outlined in the SOW (subject to any increases outlined below) and shall be due and payable within seven (7) days of receipt of our invoice in relation to such Services.
We reserve the right to:
- review our fees for the provision of Services at the end of the initial term of engagement set out in the SOW; and
- increase our fees for the provision of the Services following such review by giving you a minimum of thirty (30) days written notice, provided that should such notice be given you will be entitled to terminate the Agreement by giving thirty (30) days written notice should you not agree to the increased fees.
You may choose to pay all, or part, of the fees payable for a SOW in advance. Such fees will be held on account. The provision of Services, in accordance with the SOW, will be deducted from any fees held on account on a monthly basis. You will be sent a monthly statement outlining the Services provided and amounts deducted from any fees paid in advance.
The provision of the Services by us is contingent upon our receipt of payment in full from you in accordance with the SOW. In the event you fail to make payments to us by the due date, we reserve the right to suspend the provision of the Services to you.
In the event that any amount has not been paid by you as it falls due, interest on the outstanding amount will be payable by you in accordance with this clause. Such interest shall accrue on the outstanding amount from time to time at the rate of five percent (5%) per annum from the due date until the outstanding amount is paid to AXi in full, such interest to be calculated on a daily basis and paid monthly in arrears. For the avoidance of doubt, the first of such interest payments will be due one month after the due date, or as otherwise directed by AXi.
In addition to interest payable, you will be liable, and you agree to immediately reimburse AXi upon demand, for any costs incurred by AXi in relation to collection of any outstanding amounts owed by you to us, including but not limited to debt collection agency costs and legal costs.
4. Intellectual Property
Intellectual Property means all copyright, trademark rights, trade secret rights, patent rights and design rights, whether registered or unregistered, and including any application for registration for any of the foregoing.
AXi will retain exclusive ownership of all Intellectual Property associated with the provision of the Services, including, but not limited to, all:
- Proposals and solutions provided by AXi;
- Course design documents;
- Learning and learner materials;
- Assessments and assessment data;
- Learning management systems;
- Student management systems;
- Individual learner performance data;
- Materials, including videos, generated through the delivery of courses; and
- Other documents, information or materials related to the Services.
AXi will grant you a royalty free worldwide licence to use that individual learner performance data resulting from the provision of the Services.
5. Confidentiality
Confidential Information means all information (whether or not it is described as confidential) in any form or medium that relates to the business, corporate, legal and financial affairs, technology, know-how, processes, products, pricing and/or customers of a party, its related bodies corporate or its customers, but excludes information which: (a) is in or becomes part of the public domain; (b) was already known to it at the time of disclosure; or (c) a party learns from a third party under no duty of confidence.
Each party:
- must not use, disclose or copy any Confidential Information of the other party in any form or in any manner; and
- must use its best endeavours, including keeping such information in a safe place and implementing adequate security measures, to ensure that third parties do not use, disclose or copy Confidential Information, except for the purpose of and to the extent necessary to perform its obligations or exercise its rights under the Agreement.
These obligations do not apply if:
- a party has agreed in writing to a specific disclosure; or
- disclosure is required to comply with any applicable law or court requirement.
This will continue to bind each party after the Agreement has been terminated, rescinded or otherwise expired.
6. General Terms and Conditions
Consents and Approvals
You are solely responsible for obtaining any and all necessary consents and authorisations in relation to all material, images and content and any other information you provide to us.
Termination
Subject to any fixed term as set out in the SOW, either party may terminate the Agreement by giving thirty (30) days written notice to the other party. You will be liable for any fees incurred during the notice period.
In the event the Agreement is terminated by you, then you will be liable to pay us on demand the aggregate of:
- all unpaid fees pursuant to the SOW to the date of the termination together with any monies which are payable to AXi pursuant to the Terms and Conditions; and
- the balance of fees payable from the date of the termination to the end of any fixed term which would have been payable had the Agreement not been terminated.
If, at the date of termination, you have any fees on account, then you may request to:
- apply such fees to a future SOW, or
- receive a refund (providing 30 days notice in writing prior to termination).
We may terminate the Agreement immediately by notice in writing to you if you fail to make payments in relation to the Services to us as and when they fall due and you fail to rectify the failure to pay within five (5) working days from receipt of notice from us requesting rectification.
We may terminate the Agreement immediately by notice in writing to you if you:
- are in breach of any of these Terms and Conditions and you fail to rectify such breach within five (5) working days from receipt of notice from us requesting rectification of same; or
- if you are a company and you go into liquidation, administration or receivership; or
- if you are a person and you are declared bankrupt; or
- you fail to provide us with satisfactory instructions in relation to the provision of the Services (as determined by us acting reasonably) for a continuous or aggregate period of 90 days.
Severability
If any clause of these Terms and Conditions is held to be invalid and/or unenforceable in whole or in part, the invalid or unenforceable clause or part shall be deemed to be omitted.
Force Majeure
AXi shall not be liable for failure to provide the relevant Services if the failure is attributable to any cause which is reasonably beyond AXi’s control (‘Force Majeure’).
If AXi experiences a Force Majeure event that will result in its non-performance, it shall promptly notify you in writing of the existence of that event and the anticipated period of non-performance.
If the actual period of non-performance by AXi because of an event of Force Majeure exceeds (or is reasonably likely to exceed) 3 months from the date of such notice of Force Majeure, you shall be entitled to terminate this Agreement as of the end of such 3 month period or at any time thereafter during the continuance of the event of Force Majeure conditions based on sixty (60) days written notice to
Neither party shall have any claim against the other party as a result of such termination.
Non-Solicitation
During the term of the Agreement and for a period of six (6) months after the termination of the Agreement for any reason, each party must not directly or indirectly, without prior written consent from the other party:
- induce or assist in the inducement of any director, manager, employee or contractor of the other party to leave, or terminate, his or her employment or engagement, whether or not that person would commit a breach of that person’s contract of employment or engagement; or
- employ or engage any person who during the term of the Agreement was a director, manager, employee of or contractor to the other party.
Each party acknowledges this clause is necessary to protect each party’s business.
Exclusions and Limitations of Liability
Whilst we make every effort to ensure that the Services will achieve your desired outcomes, all conditions and warranties as to the condition, suitability, quality, accuracy, availability, effectiveness or fitness of the Services or otherwise are expressly excluded.
You indemnify and agree to keep indemnified AXi against all loss suffered by AXi directly or indirectly arising as a result of the provision of the Services to you, including but not limited to, any loss arising from any action, claims, demands or suits commenced or made against AXi by any third party, save for losses arising as a result of our gross negligence, wilful default or fraud.
Change to Terms
We reserve the right to review and change the Terms and Conditions by providing you thirty days’ notice in writing setting out details of the change, provided that should such change be notified you will be entitled to terminate the Agreement within the thirty days’ notice period should you not agree to the amendment. If AXi does not receive such notice from you within the required time frame and continues to provide Services to you thereafter, you are deemed to have accepted the change to these Terms and Conditions.
Entire Agreement
These Terms and Conditions together with the SOW, constitute the entire agreement with you (“the Agreement”), and supersede all prior agreements, understandings, representations whether oral or written. No oral explanation or information given by any party shall alter the interpretation of these Terms and Conditions.
Governing Law
The Agreement shall be governed by the laws in force in the state of New South Wales, Australia.
If you have any questions about the Standard Terms of Business for Organisations, please contact Academy Xi:
Academy Xi Pty Ltd | ABN 84 608 846 822
Brookfield Place, Level 11, 10 Carrington St Sydney NSW 2000 Australia
enterprise@academyxi.com
