cpd-terms - Ensombl

These Terms of Use (“Agreement”) are entered into between Ensombl Pty Ltd (ABN 45 606 168 781), of Level 4, 75 Pitt Street, Sydney NSW 2000 (“Ensombl”, “we”, “us”, “our”) and you (“Client, the client, the user”), the user of our CPD Platform, in relation to your use of the Ensombl CPD Program.

A. Ensombl provides software and services to the financial planning industry.
B. Ensombl has developed a software as a service program for the delivery of CPD learning content and for the management of CPD activities.
C. The Client has requested Ensombl to provide the Client and its Users with access to its Ensombl CPD Program, and Ensombl has agreed to do so on the terms and conditions of this Agreement.

AGREED TERMS

1. DEFINITIONS AND INTERPRETATION

1.1 Definitions

In this Agreement, unless the context requires otherwise: “Affiliate” means, in relation to any entity, any other entity that:

(a) is a Related Body Corporate of the first mentioned entity; or
(b) Controls, is Controlled by, or is under common Control with the first mentioned entity.

“Agreement” means this agreement;

“Business Day” means a day that is not a Saturday, Sunday or public holiday in New South Wales.

“Claims” includes any claim, notice, demand, costs (including legal costs and expenses), debts, dues, liabilities, damages, losses, action, proceeding, litigation, investigation or judgment, however it arises and whether it is present or future, fixed or unascertained, actual or contingent.

“Confidential Information” means all of the Information that is marked as confidential at the time it was provided or is of such a commercial and sensitive nature that the Recipient would understand that at the time that it is provided that it is confidential to the other party, other than any part of that Information that:

(a) is or becomes part of the public domain, otherwise than through a breach of confidentiality by the Recipient or any person to whom the Recipient has disclosed that Information; or
(b) the Recipient can prove by written records was developed or created by the Recipient prior to the Recipient receiving the Information from the Disclosing Party and independently of the Disclosing Party; or
(c) was received by the Recipient from a third party legally entitled to possess the Information and provide it to the Recipient.

“Content” means any information, learning materials, guides, assessments and other tools or materials that are provided by or in connection with the Ensombl CPD Program.

“Control” has the meaning given to that term by section 50AA of the Corporations Act and “Controlled” has the same meaning.

“Controller” means, in relation to a person’s property a receiver or receiver and manager of that property; or anyone else who (whether or not as agent for the person) is in possession or has control of that property to enforce an Encumbrance.

“Corporations Act” means the Corporations Act 2001 (Cth).

“CPD” means the continuous professional development obligations applicable to financial advisors.

“Disclosing Party” means a party that has disclosed Information to the other party or to whom the Information relates.

“Documentation” means the continuous professional development obligations applicable to financial advisors.

“Encumbrance” means any mortgage, pledge, lien, option, hypothecation, charge (whether fixed or floating) or other form of security interest or interest in the nature of a security interest whatsoever.

“Ensombl Client Account” means the account that the Client opened with Ensombl to enable the Client to use the Ensombl CPD Program;

“Ensombl CPD Program” means the program within the Ensombl Program Suite that enables the Client to monitor and manage the CPD activities of its Users and which allows users to fulfil their CPD obligations

“Ensombl Platform” means the cloud based software platform developed by Ensombl which enables the Client to receive and interact with the Ensombl Program Suite.

“Ensombl Program Suite”means the suite of programs and services provided by Ensombl from time to time.

“Ensombl Website” means the documentation provided in connection with the Ensombl CPD Program which provide a user guide for the Ensombl CPD Program.

“Event of Default” means the documentation provided in connection with the Ensombl CPD Program which provide a user guide for the Ensombl CPD Program.

(a) a party breaching any material provision of this Agreement and failing to remedy the breach within 30 days after receiving notice requiring it to do so; or where that breach is incapable of remedy; or
(b) the Recipient can prove by written records was developed or created by the Recipient prior to the Recipient receiving the Information from the Disclosing Party and independently of the Disclosing Party; or
(c) was received by the Recipient from a third party legally entitled to possess the Information and provide it to the Recipient.
“Information” means:
- (a) all information regardless of form (including information in relation to Intellectual Property Rights) that relates to the Disclosing Party, its businesses or affairs, and that, either before or after the date of this Agreement is disclosed directly or indirectly by any means to the Recipient by the Disclosing Party or any of its Relevant Persons or suppliers; or otherwise comes to the knowledge of the Recipient;
- (b) any notes, reports and documents which contain or refer to the information described in clause (a); and
(c) in respect of Ensombl’s information, includes (but is not limited to) any information in respect of the business of Ensombl or any of its Relevant Persons, including all information in respect of the Ensombl CPD Program and all associated Intellectual Property Rights.

“Insolvency Event” means the occurrence of any of the following events in relation to any person:

(a) the person becomes insolvent as defined in the Corporations Act, states that it is insolvent or is presumed to be insolvent under an applicable law;
(b) the person is wound up, dissolved, or declared bankrupt;
(c) a liquidator, provisional liquidator, Controller, administrator, trustee for creditors, trustee in bankruptcy or other similar person is appointed to, or takes possession or control of, any or all of the person’s assets or undertaking;
(d) the person enters into or becomes subject to any arrangement or composition with one or more of its creditors or any assignment for the benefit of one or more of its creditors; or
(e) anything occurs under the law of any jurisdiction which has a substantially similar effect to any of the other paragraphs of this definition, unless the event occurs as part of a solvent reconstruction, amalgamation, merger, or consolidation that has been approved in writing by the other party to this Agreement.

“Intellectual Property Rights” means all intellectual and industrial property rights of whatever nature (whether or not registered or registrable) including, but not limited to:

(a) patents, copyrights, designs, trademarks, trade secrets, drawings, inventions, discoveries, research developments;
(b) any application or right to apply for registration of any of the rights in paragraph (a) and all renewals and extensions of those rights; and
(c)the right to have Confidential Information kept confidential.

“Loss” means any debt or other monetary liability or penalty, fine or payment or any damages, losses, costs, charges, outgoings, or expenses of whatever description.

“Program Fees” means the fees for the use of the Ensombl CPD Program as specified

“Purpose” means to undertake CPD learning courses and to record the attendance of Users at those courses and otherwise monitor and manage the compliance of Users with their CPD obligations.

“Recipient” means a party that has received information from another party or that otherwise comes into possession of information relating to another party.

“Relevant Person” means:

(a) in the case of the Client – each of the Client’s Affiliates and each of the Client’s or the Client’s Affiliates’ officers, directors, employees, contractors, consultants, agents, representatives and includes each User and any party that provides the Client with Content; and
(b) in the case of Ensombl – each Affiliate of Ensombl and each of Ensombl’s and its Affiliates’ officers, directors, employees, contractors, consultants, agents and representatives.

“Services” means the licensing of the Ensombl CPD Program.

“Service Fees” means the Program Fees.

“Super Admin” means the person that the Client has designated as the person who will manage the Ensombl Client Account on behalf of that Client and who will be solely responsible for the level of access to the Ensombl CPD Program granted to the Client’s other Users and will have access to all of the data and metrics in the accounts of the Client’s other Users in the Ensombl CPD Program and the aggregate metrics calculated by the Ensombl Platform.

“Terms of Use” means the terms of use which a User must agree to in order to use an Ensombl CPD Program.

“Third Party Products” means services, products and/or Content provided by third parties.

“User” means a member of the Client’s staff or a member of the staff or an entity that is licensed by the Client to provide financial services to whom the Client gives access to the Ensombl CPD Program pursuant to this Agreement.

1.2 Words and expressions

In this Agreement, unless the context requires otherwise:

(a) the singular includes the plural and vice versa;
(b) where a word or phrase is defined, its other grammatical forms have a corresponding meaning
(c) a reference to a party, clause, paragraph, schedule or annexure is a reference to a party, clause, paragraph, schedule or annexure to or of this Agreement;
(d) a reference to this Agreement includes any schedules or annexures;
(e) headings are for convenience and do not affect interpretation;
(f) a reference to any document or agreement includes a reference to that document or agreement as amended, novated, supplemented, varied or replaced from time to time;
(g) a reference to a party includes its executors, administrators, successors, substitutes (including persons taking by novation) and permitted assigns;
(h) words and expressions denoting natural persons include bodies corporate, partnerships, associations, firms, governments and governmental authorities and agencies and vice versa;
(i) a reference to any legislation or to any provision of any legislation includes:
- (i) any modification or re-enactment of the legislation;
- (ii) any legislative provision substituted for, and all legislation, statutory instruments and regulations issued under, the legislation or provision; and
- (iii) where relevant, corresponding legislation in any Australian State or Territory;
(j) no rule of construction applies to the disadvantage of a party because that party was responsible for the preparation of this document or any part of it; and
(k) the words “including”, “for example”, “such as” or other similar expressions (in any form) are not words of limitation.

1.3 Other rules of interpretation

In this Agreement, unless expressly provided otherwise:

(a) (Business Days) if the day on or by which any act, matter or thing is to be done is a day other than a Business Day, the act, matter or thing will be done on the next Business Day; and any money falls due for payment on a date other than a Business Day, that money will be paid on the next Business Day (without interest or any other amount being payable in respect of the intervening period); and
(b) (inconsistency within document) if a clause of this Agreement is inconsistent with any other agreement, schedule or annexure, this Agreement prevails to the extent of the inconsistency.

2. ACCESS

2.1 Access

(a) In consideration of payment of the Program Fees, Ensombl grants to the Client non-exclusive and non-transferable access rights for the Client’s Users to use the Ensombl CPD Program in accordance with clause 2.2 solely for the Purpose and solely for the Term, and on the terms and conditions set out in this Agreement and the Terms of Use.
(b) The Client understands and agrees that the Client’s Super Admin will be solely responsible for the level of access to the Ensombl CPD Program granted to the Client’s other Users (within the Super Admin’s scoped remit) and as a result the Super Admin will be responsible for setting the extent to which any information and reports generated by the Ensombl CPD Program is available to be accessed or reviewed by the Client’s other Users.

2.2 Terms of Use Generally

(a) Notwithstanding any other term of this Agreement, Ensombl may (and hereby reserves the right to) suspend the Client’s access to the Ensombl CPD Program if any of the Client’s Users commits a material breach of the terms of this Agreement or the Terms of Use.
(b) Ensombl may suspend or limit access to the Ensombl CPD Program from time to time for modification, upgrading or maintenance of the Ensombl CPD Program, by providing the Client with reasonable notice.
(c) Ensombl reserves the right to amend, vary, modify and/or replace the Terms of Use of the Ensombl CPD Program at any time, and from time to time, and such amendment, variation, modification and/or replacement shall be effective immediately upon posting to the Ensombl Website. The Client’s and its User’s continued use of the Ensombl CPD Program shall be deemed to be the Client’s and that User’s acceptance of any amendments to those Terms of Use.

2.3 The Client’s obligations

(a) The Client hereby unconditionally and irrevocably agrees to procure that each of its Users accepts and agrees to comply with the Terms of Use of the Ensombl CPD Program prior to accessing or using the Ensombl CPD Program.
(b) The Client acknowledges and agrees it will:
- (i) be responsible for the accuracy and completion of the payment and contact details that the Client provides to Ensombl;
- (ii) ensure that the configuration and outcomes of the Ensombl CPD Program and the outcomes that the Ensombl CPD Program is capable of delivering meet the Client’s requirements;
- (iii) ensure that the Ensombl CPD Program is used strictly in accordance with the terms of this Agreement and strictly in compliance with all applicable laws and regulations;
- (iv) be liable for any breach of this Agreement or the Terms of Use of the Ensombl CPD Program by any of the Client’s Users;
- (v) make every reasonable effort to prevent unauthorised access to the Ensombl CPD Program;
- (vi) ensure that the Client’s network and systems (including the email, web browser and other IT systems available to the Client’s Users) comply with the specifications Ensombl provides from time to time; and
- (vii) comply with and procure that each of the Client’s Relevant Persons complies with, any request by Ensombl in connection with the Ensombl CPD Program (including the Client’s use and access), or otherwise in relation to this Agreement.

2.4 Control of Ensombl CPD Program

The Client acknowledges and agrees that it will not:

(a) use the Ensombl CPD Program for any purpose other than the Purpose;
(b) use the Ensombl CPD Program other than as provided in this Agreement;
(c) make the Ensombl CPD Program available to any person other than to a User;
(d) access or attempt to access the source code of and data of the Ensombl CPD Program;
(e) copy, reverse engineer, adapt, decompile, vary or modify the Ensombl CPD Program;
(f) use the Ensombl CPD Program to create, train, or improve (directly or indirectly) a substantially similar product or service, including, without limitation, any other content delivery or personal improvement platform or service;
(g) use the Ensombl CPD Program to undertake any activities in relation to any information or materials which breach any laws or regulations, infringe a third party’s rights, or are contrary to any relevant standard or code;
(h) knowingly transmit to the Ensombl CPD Program or use the Ensombl CPD Program to transmit, any virus or other disabling feature;
(i) dispute Ensombl’s right to refuse a User access to the Ensombl CPD Program and will comply with any request given by Ensombl in that regard; and
(j) attempt any of the above acts or permit another person to do any of the above acts.

2.5 Availability of Ensombl CPD Program

(a) The Client acknowledges and agrees that each of the Ensombl CPD Program is provided on an “as is” and “as available” basis. While Ensombl will use reasonable endeavours to provide the Ensombl CPD Program to the Client and the Client’s Users, the Client unconditionally and irrevocably acknowledges and agrees that the Ensombl CPD Program may not be continuous or fault-free and may not be available at all times. Events which are outside Ensombl’s reasonable control may also affect the Ensombl CPD Program. The Ensombl CPD Program may contain bugs, errors or inaccuracies that could cause failures, corruption or loss of data and/or information from the Client’s device, any of the Client’s User’s devices and from peripherals (including without limitation, servers, computers, tablets and smart phones) connected to the Client’s device or to any of the Client’s User’s devices.
(b) The Client assume all risks and costs associated with the Client’s use and the use by the Client’s Users of the Ensombl CPD Program and any internet access fees, including all data and roaming changes. In addition, Ensombl is not obliged to, and may not provide the Client with any maintenance or technical support for the Ensombl CPD Program.

3. CONTENT

3.1 Third Party Products

(a) The Client acknowledges and agrees that the ongoing operation of the Ensombl CPD Program is dependent on third-party services, such as but not limited to:
- (i) hosting services;
- (ii) email services; and
- (iii) analytics services.
(b) The Client understands that certain components or features of the Ensombl CPD Program may include Third Party Products.
(c) The Client acknowledges and agrees that Ensombl:
- (i) is not responsible for the availability of any Third Party Products;
- (ii) does not endorse or warrant the accuracy of any Third Party Products; and
- (iii) shall in no way be liable for any loss or damage the Client incur or suffer, or allege to have incurred or suffered, either directly or indirectly, as a result of the Client’s use and/or reliance upon any Third Party Products.

3.2 The Client’s use of the Ensombl CPD Program

(a) The Client understands and agrees that the Ensombl CPD Program derive insights from the manner in which the Client’s Users use the Ensombl CPD Program.
(b) The Client understands and agrees that any data or insights that the Ensombl CPD Program derives from the manner in which the Client and the Client’s Users use the Ensombl CPD Program will be available to Ensombl to fix any error in the Ensombl CPD Program; to upgrade, develop or improve the Ensombl CPD Program; or to fix, upgrade, develop or improve Ensombl’s other products or services, subject to the applicable provisions of any relevant legislation including, without limitation, privacy legislation.
(c) The outcomes from the Ensombl CPD Program will be uploaded to the Client’s Ensombl Dashboard.
(d) The Ensombl CPD Program may provide links to other websites or apps. Those links are provided for convenience only and may not remain current or be maintained. Ensombl is not responsible for the content or privacy practices associated with third party service providers, websites or apps.

4. SERVICE FEES

4.1 Service Fees Generally

(a) The Client must pay to Ensombl the Service Fees according to the Client’s then current User count. If the Client adds or removes a Users, the Service Fees will be adjusted according to the then current User count.

4.2 Service Fees for the Ensombl CPD Program

(a) The Client agrees to pay the Service Fees monthly in advance on a recuring monthly basis until Termination.
(b) The Client agrees that any paid Services Fees are forfeited upon Termination.
(c) The Client acknowledges and agrees that it is not entitled to access the Client’s Ensombl Dashboard of results or receive learning content until all outstanding Service Fees have been paid.

4.3 Alteration to Service Fees

The Client acknowledges and agrees that the Service Fees may vary depending on the number of Users that the Client includes in the Client’s use of the Ensombl CPD Program.

4.4 Payment terms Service Fees Generally

All Service Fees must be paid monthly in advance and be paid :

(a) by credit card or on receipt of an invoice; or
(b) by payment by the nominated method to Ensombl as agreed with the Client from time to time; and in immediately available funds and without set-off, counter claim, condition or, unless required by law, deduction or withholding.

5. REPRESENTATIONS, WARRANTIES AND LIABILITIES

5.1 Mutual representations and warranties

Each party represents and warrants that:

(a) it is duly incorporated under the laws of the place of its incorporation;
(b) it has full legal capacity and power to own property and carry on its business and enter into and perform its obligations under this Agreement.
(c) it has taken all corporate and other action required and obtained or been granted all consents, approvals, permissions and authorisations, whether internal or external, necessary to enable it to enter into and perform its obligations under this Agreement;
(d) this Agreement constitutes a valid and legally binding obligation of it in accordance with its terms (except to the extent limited by equitable principles and laws affecting creditors’ rights generally); and
(e) the execution, delivery and performance of this Agreement will not contravene any law regulation, order, judgment or decree of any court or government agency which is binding on it or any of its property, any provision of its constitution or equivalent documents, or any agreement, undertaking or instrument which is binding on it or any of its property.

5.2 Ensombl warranty

Ensombl represents and warrants that each Ensombl CPD Program will operate in accordance with the applicable Documentation and will materially conform to any specifications contained in the Documentation.

5.3 Disclaimer

(a) Except for the express representations and warranties in clauses 5.1 and 5.2, Ensombl disclaims all express or implied representations, warranties, guarantees and conditions with regard to the Ensombl CPD Program, other than any express representations and warranties in the Documentation.
(b) Ensombl makes no representations or warranties regarding the suitability, performance, merchantability or fitness for purpose or the results that the Client (or any Users) may obtain by using the Ensombl CPD Program other than any express representations and warranties in any Documentation.
(c) The Client acknowledges and agrees that the Client is solely responsible for the manner in which the Client’s Users use the Ensombl CPD Program and for the manner in which the Client or any User chooses to use or ignore any learning content provided by the Ensombl CPD Program.
(d) The Client must ensure that the Ensombl CPD Program is suitable and compatible with the Client’s technical and operating environment (including any change in such environment).
(e) Ensombl will not be liable if the Client is unable to use any Ensombl CPD Program due to any incompatibility or fault or incorrect configuration of the Client’s equipment or an interference, network congestion or outages on the network connecting the Client with the Ensombl CPD Program.
(f) The Client acknowledges and agrees that Ensombl does not control the transfer of data over communications facilities.

5.4 Limitation of liability

(a) To the maximum extent permitted by law, Ensombl’s maximum liability to the Client for any breach of this Agreement is limited to having agreed deficiencies in the Ensombl CPD Program rectified or the payment of the cost of having the agreed deficiencies in the Ensombl CPD Program rectified.
(b) If Ensombl is unable to rectify the agreed deficiencies in an Ensombl CPD Program, the Client is entitled to recover the portion of the Program Fees paid to Ensombl for such agreed deficiencies in the Ensombl CPD Program and such refund shall be Ensombl’s total maximum liability.

5.5 Exclusion of liability

To the maximum extent permitted by law, Ensombl excludes liability for any consequential or indirect loss or damage (including by way of example, loss of profit, loss of opportunity, loss of goodwill, loss of business, damage to reputation, business interruption, loss or corruption of data and loss of privacy of communications) which may or does arise in connection with the Ensombl CPD Program or otherwise in connection with this Agreement or any breach of it, or any fraud or wilful misconduct by or on behalf of Ensombl and/or any of its Relevant Persons.

5.6 Indemnity

(a) Each Party (“Indemnifying Party”) irrevocably and unconditionally indemnifies and will keep indemnified and hold harmless the other Party (“Indemnified Party”) and each of its Relevant Persons from and against (and must upon demand pay the Indemnified Party and each of its Relevant Persons (as relevant) an amount equal to) all Loss which the Indemnified Party or any of its Relevant Persons suffers or incurs or in connection with a Claim made by any person against the Indemnified Party or any of its Relevant Persons, of any kind, which arise as a direct or indirect result of or in connection with any breach by the Indemnifying Party or any of its Relevant Persons of this Agreement.
(b) In addition, the Client irrevocably and unconditionally indemnifies and will keep indemnified Ensombl and hold harmless Ensombl and each of its Relevant Persons from and against (and must upon demand pay Ensombl and each of its Relevant Persons (as relevant) an amount equal to) all Loss which Ensombl or any of its Relevant Persons suffers or incurs or in connection with a Claim made by any person against Ensombl or any of its Relevant Persons, of any kind, which arise as a direct or indirect result of or in connection with the Client’s failure to use the Ensombl CPD Program in the manner contemplated by this Agreement (including, without limitation, clause ‎3.2) or which arise as a direct or indirect result of or in connection with the manner in which the Users use the Ensombl CPD Program or to the manner in which the Client or any User chooses to use or ignore any learning content generated by the Ensombl CPD Program.

6. SURVIVAL OF REPRESENTATIONS AND INDEMNITIES

6.1 Representations and warranties

All representations and warranties in this Agreement will survive the execution and delivery of this Agreement, will remain in full force and effect for the term of this Agreement and, are and will be given with the intent that liability under the representations and warranties will not be confined to breaches discovered prior to the date of this Agreement.

6.2 Indemnities

Each indemnity in this Agreement is a continuing obligation; constitutes a separate and independent obligation of the party giving the indemnity from its other obligations under this Agreement; and will survive termination of this Agreement.

7. INTELLECTUAL PROPERTY

7.1 Intellectual Property rights

The Client acknowledges and agrees that:

(a) Ensombl (or its Relevant Persons) owns or licences all of the Intellectual Property Rights in the Ensombl CPD Program, the systems, processes, content and background technology used to provide the Ensombl CPD Program and any data, information or materials related to or arising from the use of the Ensombl CPD Program;
(b) nothing in this Agreement gives the Client any proprietary right to the Ensombl CPD Program and its associated Intellectual Property Rights; and
(c) all Intellectual Property Rights created by the Client’s use (or the use by any of the Client’s Relevant Persons) of the Ensombl CPD Program or otherwise in connection with this Agreement will vest and be owned by Ensombl (and the Client hereby assigns to Ensombl all such existing and future Intellectual Property Rights).

8. CONFIDENTIALITY

8.1 Ensombl’s use of Confidential Information

(a) Ensombl may use any Confidential Information owned by or pertaining to the Client to provide the Client with access rights to the Ensombl CPD Program; to fix any error in the Ensombl CPD Program; to upgrade, develop or improve the Ensombl CPD Program; or to fix, upgrade, develop or improve Ensombl’s other products or services, and Ensombl may disclose any such Confidential Information to any third party engaged by Ensombl for one of more of those purposes. Ensombl will use its reasonable efforts to ensure that such third party complies with obligations of confidence similar to those required by this clause ‎8.
(b) Subject to clause 8.1(a), Ensombl must keep the Client’s Confidential Information confidential and ensure that any such third parties and advisers keep it confidential and must not disclose this information to any person except:
- (i) with the Client’s prior written consent;
- (ii) to the extent required by law; or
- (iii) to any advisers who have a need to know the Confidential Information, but only to the extent they have a need to know; and before disclosure, are directed by Ensombl to keep the Confidential Information confidential.

8.2 The Client’s use of Confidential Information

The Client must keep Ensombl’s Confidential Information confidential and ensure that the Client’s Relevant Persons and the Client’s advisers keep it confidential and must not disclose this information to any person except:

(a) with the prior written consent of Ensombl;
(b) to the extent required by law; or
(c) to any of the Client’s Relevant Persons or the Client’s advisers who have a need to know the Confidential Information, but only to the extent they have a need to know; and before disclosure, are directed by the Client to keep the Confidential Information confidential.

8.3 Deemed breach

A Recipient will be deemed to have breached its obligations under this clause 8 if any of its Relevant Persons or advisers commits any act or omission that, if committed by the Recipient, would be a breach of this Agreement.

8.4 Acknowledgment

Each Recipient acknowledges that:

(a) the Disclosing Party may suffer commercial or other loss and damage if the Confidential Information of the Disclosing Party is used by any third party, or disclosed or made available to any third party by the Recipient other than in accordance with this Agreement;
(b) damages may be an inadequate remedy to protect the interests of the Disclosing Party if the Recipient breaches the provisions of this clause 8; and
(c) the Disclosing Party is entitled to seek and obtain injunctive relief or any other remedy, in any court, against the Recipient for breach of this clause 8.

9. PRIVACY

9.1 Privacy Policy

(a) Ensombl maintains a privacy policy in compliance with the provisions of the Privacy Act 1989 (Cth) for data that it collects about the Client, the Users and any other person who uses the Ensombl Program Suite (“Privacy Policy”).
(b) By using the Ensombl CPD Program:
- (i) the Client consents and agrees to the collection, processing and use of personal data about the Client and the Client’s Users and information about the Client and the Client’s Users from the manner in which they use or respond to or fail to respond to the Ensombl CPD Program which Ensombl will use in accordance with the Privacy Policy, which is incorporated into, and forms an integral part of this Agreement; and
- (ii) the Client acknowledges that the Client accepts and agrees to be bound by the terms of the Privacy Policy.
(c) The Client confirms and agrees that it has read and understood Privacy Policy and agrees that all personal information collected by Ensombl is subject to the Privacy Policy.

9.2 Location data and cookies

The Ensombl CPD Program may use location data and cookies to improve the Client’s experience while using the Ensombl CPD Program, which also send browsing information back to Ensombl CPD Program. By continuing to use the Ensombl CPD Program, the Client consents to the use of location data and cookies.

10. PUBLICITY

The Client consents to Ensombl listing the Client as a client on Ensombl’s website, blogs, social media accounts and in other marketing materials. Subject always to clause 8, Ensombl may describe, generally, the services provided under this Agreement to the Client.

11. FORCE MAJEURE

Ensombl is not liable for any failure to perform or delay in performing its obligations under this Agreement if that failure is due to anything beyond Ensombl’s reasonable control.

12. NOTICES

12.1 Method

All notices, requests, demands, consents, approvals, offers, agreements or other communications (“notices”) given by a party under or in connection with this Agreement must be:

(a) in writing;
(b) signed by a person duly authorised by the sender or, where transmitted by e mail, sent by a person duly authorised by the sender;
(c) directed to the intended recipient’s address (as specified in clause 12.3 or as varied by any notice); and
(d) hand delivered, sent by prepaid post or transmitted by e mail to that address.

12.2 Receipt

A notice given in accordance with this clause is taken as having been given and received:

(a) if hand delivered, on delivery;
(b) if sent by prepaid post, either:
- (i) on the day on which the relevant postal service estimates delivery will occur; or
- (ii) on the first day of the period during which the relevant postal service estimates delivery will occur,
- (iii) based on the most recent estimate published by the relevant postal service as at the date on which the notice is sent; or
(c) if transmitted by e mail, on transmission,but if the delivery or transmission is not on a Business Day or is after 5.00PM (recipient’s time) on a Business Day, the notice is taken to be received at 9.00AM (recipient’s time) on the next Business Day.

12.3 Addresses

Unless varied by notice in accordance with this clause 12, the contact details of the parties are set out at www.ensombl.com

12.4 Requirement for written notice

For the avoidance of doubt, the requirement in clause 12.1(a) applies to all notices unless expressly excluded and no implication to the contrary is to be drawn from the use of the expressions “written” or “in writing” in relation to some but not all notices.

13. TERMINATION

13.1 Termination of the Agreement

This Agreement will terminate with immediate effect:

(a) by written agreement between the parties;
(b) by Ensombl if the Client fails to pay any outstanding Service Fees within thirty days of the date the payment was due;
(c) at the end of the then current Term unless the Client renews its Ensombl Client Account prior to the end of the then current Term; or
(d) by either party providing a written notice to the other party if an Event of Default occurs in respect of the other party.

13.2 Effect of Termination

(a) The Client and each of its Users will immediately cease to have access to the Ensombl CPD Program upon termination of this Agreement.
(b) Termination of this Agreement does not affect any accrued rights or remedies of either party.
(c) Upon the termination of this Agreement, Ensombl’s obligation to provide the Client and its Users with access to the Ensombl CPD Program will terminate and the Client will cease to use any of Ensombl’s Confidential Information in any manner whatsoever and will return all Confidential Information to Ensombl and will pay to Ensombl all amounts due under this Agreement as at the date of termination.
(d) The Client acknowledges and agrees that Ensombl will have no obligation to maintain any of the Customer’s data for more than thirty (30) days beyond the date on which this Agreement is terminated.
(e) Ensombl shall be entitled if it so elects to do so to retain (i) one copy of Client’s data if it is required to do so for reasons of compliance with its legal, regulatory or compliance obligations, and (ii) any of the Client’s data contained in electronic files created pursuant to automatic archiving and back-up procedures in the ordinary course of business, and (iii) any of the Client’s data that is held on a de-identified basis.

13.3 Survival

This clause 13.13 and clauses 1, 5.3, 5.4, 5.5, 6, 7, 8, 9, 10, 14, 15 and 16 survive termination of this Agreement.

14. DISPUTE RESOLUTION

(a) If a dispute arises out of or in relation to this Agreement (“Dispute”) no party to the Dispute (“Disputant”) will start arbitration or court proceedings (except proceedings seeking interlocutory relief) unless it has complied with this clause 13.
(b) A party claiming that a Dispute has arisen must notify each other Disputant in writing giving details of the Dispute and its proposal for a resolution.
(c) For a 14-day period after a notice is given (“Initial Period”) each Disputant must use all reasonable endeavours to resolve the Dispute and a director of each Disputant will meet within the first seven days of that period with that aim.
(d) If the Dispute remains unresolved at the end of the Initial Period, it must be referred, by written notice from a Disputant to the other Disputant, to mediation by:
- (i) a person agreed on by the Disputants; or
- (ii) if agreement is not reached within seven days of the notice for referral, a mediator nominated by the chairman of the Victorian Bar Council.
(e) The mediation will be conducted using such technology as the mediator may approve in writing. If the mediator specifies that the mediation is to be conducted in person, then, unless otherwise agreed between the Disputants, the mediation will take place in Melbourne, Victoria, Australia. In all cases, the mediation will be conducted in English, and the Disputants will be entitled to legal representation.
(f) Each Disputant will use all reasonable endeavours to resolve the Dispute through mediation as soon as is practical, including, but not limited to, providing the mediator with all information relevant to the Dispute.
(g) Any information or documents disclosed by a Disputant under this clause must be kept confidential and may not be used except to attempt to resolve the Dispute.
(h) Each Disputant must bear its own costs of complying with this clause 14 and the Disputants must bear equally the mediator’s costs.
(i) If the Dispute is still not resolved within 21 days of appointment of the mediator, a Disputant that has complied with this clause 14 may request the mediator to terminate the dispute resolution process and if the mediator consents in writing to the termination of the mediation, that Disputant may terminate the dispute resolution process by giving notice to the other Disputant.

15. GST AND SALES TAX

15.1 Definitions

For the purposes of this clause 15, Taxable Supply, Consideration and GST will have the meaning given to those terms in section 195-1 of the GST Act.

15.2 Exclusive of GST

If anything done, or required to be done, under this Agreement, or anything done in settlement of the consequences of a breach of any representation or warranty or other clause of this Agreement, constitutes a Taxable Supply by one party to another party, unless otherwise provided in this Agreement, the Consideration for that Taxable Supply will be exclusive of any GST.

15.3 Consideration to be increased

If the party making the Taxable Supply is liable for any GST on that Taxable Supply, subject to that party issuing a valid tax invoice (or adjustment note) to the party that receives the Taxable Supply, the Consideration received will be increased so that the party making the Taxable Supply receives, net of the GST liability, the Consideration otherwise calculated pursuant to this Agreement.

15.4 Sales tax

Unless otherwise expressly stated in an invoice, all amounts payable under this Agreement are expressed to be exclusive of added tax, any similar sales tax, value added tax, goods and services tax or any tax that replaces sales taxes. Any tax payable in relation to any such amounts shall be paid in addition to those amounts, provided that a valid invoice is issued by the supplying party in relation to that supply. If any deductions or withholdings are required by law to be made from any amounts payable (other than in relation to income tax liability), the receiving party must promptly increase the sum it pays to the supplying party by the amount necessary to leave the supplying party with an amount equal to the sum it would have received if no such withholdings or deductions had been made.

16. GENERAL

16.1 Entire agreement

This Agreement constitutes the entire agreement between the parties in relation to its subject matter. All prior discussions, undertakings, agreements, representations, warranties and indemnities in relation to that subject matter are replaced by this Agreement and have no further effect.

16.2 Paramountcy of Agreement

If this Agreement conflicts with any other document, agreement or arrangement, this Agreement prevails to the extent of the inconsistency.

16.3 Relationship between parties

This Agreement does not create a relationship of employment or partnership between the parties. Other than as expressly contemplated in this Agreement, no party may act or hold itself out as having the authority for another party or any way bind or commit another party to any obligation.

16.5 Amendment

This Agreement may not be amended or varied unless the amendment or variation is in writing signed by all parties.

16.6 Assignment

The Client must not assign, transfer or otherwise deal with this Agreement or any right under this Agreement without the prior written consent of Ensombl.

16.7 Severability

Part or all of any provision of this Agreement that is illegal or unenforceable will be severed from this Agreement and will not affect the continued operation of the remaining provisions of this Agreement.

16.8 Waiver

Waiver of any power or right under this Agreement:

(a) must be in writing signed by the party entitled to the benefit of that power or right; and
(b) is effective only to the extent set out in that written waiver.

16.9 Rights, remedies additional

Any rights and remedies that a person may have under this Agreement are in addition to and do not replace or limit any other rights or remedies that the person may have.

16.10 Further assurances

The Client must do or cause to be done all things necessary or reasonably desirable to give full effect to this Agreement and the transactions contemplated by it (including, but not limited to, the execution of documents).

16.11 Electronic delivery of document

If a party delivers an executed counterpart of this Agreement or any other document executed in connection with it (“Relevant Document”) by electronic means:

(a) the delivery will be deemed to be an effective delivery of an originally executed counterpart; and
(b) the party will still be obliged to deliver an originally executed counterpart, but the failure to do so will not affect the validity or effectiveness of the Relevant Document.

16.12 Governing law and jurisdiction

This Agreement will be governed by and construed in accordance with the laws in force in the State of New South Wales and each party submits to the exclusive jurisdiction of the courts of that State and to the Federal Court of Australia and the Courts of Appeal from those courts.

Background

A. Ensombl provides software and services to the financial planning industry.
B. Ensombl has developed a software as a service program for the delivery of CPD learning content and for the management of CPD activities.
C. The Client has requested Ensombl to provide the Client and its Users with access to its Ensombl CPD Program, and Ensombl has agreed to do so on the terms and conditions of this Agreement.

Operative provisions

1. DEFINITIONS AND INTERPRETATION

1.1 Definitions

In this Agreement, unless the context requires otherwise: Affiliate means, in relation to any entity, any other entity that:

(a) is a Related Body Corporate of the first mentioned entity; or
(b) Controls, is Controlled by, or is under common Control with the first mentioned entity.

Agreement means this agreement;

Background IP means, in respect of a party:

(a) all Intellectual Property:
- (i) owned by that party as at the date of this Agreement; and
- (ii) developed by that party independently of this Agreement; and
(b) all Intellectual Property Rights licensed by that party independently of this Agreement.

Business Day means a day that is not a Saturday, Sunday or public holiday in New South Wales.

Claims includes any claim, notice, demand, costs (including legal costs and expenses), debts, dues, liabilities, damages, losses, action, proceeding, litigation, investigation or judgment, however it arises and whether it is present or future, fixed or unascertained, actual or contingent.

Client Data means all data and information relating to the Client and its Users uploaded or otherwise transmitted to or stored in the Ensombl CPD Program by or on behalf of the Client, Super Admin or User, including the Content, but excluding the Service Data.

Confidential Information means all of the Information that is marked as confidential at the time it was provided or is of such a commercial and sensitive nature that the Recipient would understand that at the time that it is provided that it is confidential to the other party, other than any part of that Information that:

(a) is or becomes part of the public domain, otherwise than through a breach of confidentiality by the Recipient or any person to whom the Recipient has disclosed that Information; or
(b) the Recipient can prove by written records was developed or created by the Recipient prior to the Recipient receiving the Information from the Disclosing Party and independently of the Disclosing Party; or
(c) was received by the Recipient from a third party legally entitled to possess the Information and provide it to the Recipient.

Content means any information, learning materials, guides, assessments and other tools or materials that are provided by or in connection with the Ensombl CPD Program.

Control has the meaning given to that term by section 50AA of the Corporations Act and Controlled has the same meaning.

Controller means, in relation to a person’s property a receiver or receiver and manager of that property; or anyone else who (whether or not as agent for the person) is in possession or has control of that property to enforce an Encumbrance.

Corporations Act means the Corporations Act 2001 (Cth).

CPD means the continuous professional development obligations applicable to financial advisors.

Disclosing Party means a party that has disclosed Information to the other party or to whom the Information relates.

Documentation means the documentation provided in connection with the Ensombl CPD Program which provide a user guide for the Ensombl CPD Program.

Encumbrance means any mortgage, pledge, lien, option, hypothecation, charge (whether fixed or floating) or other form of security interest or interest in the nature of a security interest whatsoever.

Ensombl Client Account means the account that the Client opened with Ensombl to enable the Client to use the Ensombl CPD Program.

Ensombl CPD Program means the program within the Ensombl Program Suite that enables the Client to monitor and manage the CPD activities of its Users and which allows users to fulfil their CPD obligations

Ensombl Platform means the cloud based software platform developed by Ensombl which enables the Client to receive and interact with the Ensombl Program Suite.

Ensombl Program Suite means the suite of programs and services provided by Ensombl from time to time.

Ensombl Website means the URL https://ensombl.com (or any other domain or sub-domain used by Ensombl from time-to-time).

Event of Default means the documentation provided in connection with the Ensombl CPD Program which provide a user guide for the Ensombl CPD Program.

(a) a party breaching any material provision of this Agreement and failing to remedy the breach within 30 days after receiving notice requiring it to do so; or where that breach is incapable of remedy; or
(b) an Insolvency Event occurring in relation to a party.

Feedback means any suggestions, ideas, recommendations or comments provided by or on behalf of the Client in connection with the Services.

Government Agency means any government or governmental, administrative, monetary, fiscal, statutory or judicial body, department, commission, authority, tribunal, agency or entity.

GST Act means A New Tax System (Goods and Services Tax) Act 1999 (Cth).

Information means:

- (a) all information regardless of form (including information in relation to Intellectual Property Rights) that relates to the Disclosing Party, its businesses or affairs, and that, either before or after the date of this Agreement is disclosed directly or indirectly by any means to the Recipient by the Disclosing Party or any of its Relevant Persons or suppliers; or otherwise comes to the knowledge of the Recipient;
- (b) any notes, reports and documents which contain or refer to the information described in clause (a); and

(c) in respect of Ensombl’s information, includes (but is not limited to) any information in respect of the business of Ensombl or any of its Relevant Persons, including all information in respect of the Ensombl CPD Program and all associated Intellectual Property Rights.

Insolvency Event means the occurrence of any of the following events in relation to any person:

(a) the person becomes insolvent as defined in the Corporations Act, states that it is insolvent or is presumed to be insolvent under an applicable law;
(b) the person is wound up, dissolved, or declared bankrupt;
(c) a liquidator, provisional liquidator, Controller, administrator, trustee for creditors, trustee in bankruptcy or other similar person is appointed to, or takes possession or control of, any or all of the person’s assets or undertaking;
(d) the person enters into or becomes subject to any arrangement or composition with one or more of its creditors or any assignment for the benefit of one or more of its creditors; or
(e) anything occurs under the law of any jurisdiction which has a substantially similar effect to any of the other paragraphs of this definition,

unless the event occurs as part of a solvent reconstruction, amalgamation, merger, or consolidation that has been approved in writing by the other party to this Agreement.

Intellectual Property means any subject matter, whether tangible or intangible, that attracts, or is susceptible to protection by, Intellectual Property Rights.

Intellectual Property Rights means all intellectual and industrial property rights of whatever nature (whether or not registered or registrable) including, but not limited to:

(a) patents, copyrights, designs, trademarks, trade secrets, drawings, inventions, discoveries, research developments;
(b) any application or right to apply for registration of any of the rights in paragraph (a) and all renewals and extensions of those rights; and
(c) the right to have Confidential Information kept confidential.

Law includes:

(a) statutes, regulations or by-laws of the Commonwealth of Australia or any State or Territory of the Commonwealth of Australia, or a Government Agency;
(b) requirements and approvals (including conditions) of the Commonwealth of Australia or any State or Territory of the Commonwealth of Australia, or a Government Agency that have the force of law; and
(c) principles of law or equity established by decisions of courts.

Loss means any debt or other monetary liability or penalty, fine or payment or any damages, losses, costs, charges, outgoings, or expenses of whatever description.

Program Fees means the fees for the use of the Ensombl CPD Program as specified

Purpose means to undertake CPD learning courses and to record the attendance of Users at those courses and otherwise monitor and manage the compliance of Users with their CPD obligations.

Recipient means a party that has received information from another party or that otherwise comes into possession of information relating to another party.

Related Body Corporate has the meaning given to that term by section 9 of the Corporations Act.

Relevant Person means:

(a) in the case of the Client – each of the Client’s Affiliates and each of the Client’s or the Client’s Affiliates’ officers, directors, employees, contractors, consultants, agents, representatives and includes each User and any party that provides the Client with Content; and
(b) the output of any analytics of such data, including de-identified data sets regarding statistical, diagnostic or performance data generated by Ensombl in connection with the Client’s use of the Ensombl CPD Program,

Relevant Person means:

Services means the licensing of the Ensombl CPD Program.

Service Data means:

(a) data generated, produced or collected through the operation and use of the Ensombl CPD Program by the Client or any User; and
(b) requirements and approvals (including conditions) of the Commonwealth of Australia or any State or Territory of the Commonwealth of Australia, or a Government Agency that have the force of law; and
(c) principles of law or equity established by decisions of courts. but excluding Client Data.

Service Fees means the Program Fees.

Super Admin means the person that the Client has designated as the person who will manage the Ensombl Client Account on behalf of that Client and who will be solely responsible for the level of access to the Ensombl CPD Program granted to the Client’s other Users and will have access to all of the data and metrics in the accounts of the Client’s other Users in the Ensombl CPD Program and the aggregate metrics calculated by the Ensombl Platform.

Term means the monthly or annual term.

Terms of Use means the terms of use which a User must agree to in order to use an Ensombl CPD Program.

Third Party Products means services, products and/or Content provided by third parties.

User means a member of the Client’s staff or a member of the staff or an entity that is licensed by the Client to provide financial services to whom the Client gives access to the Ensombl CPD Program pursuant to this Agreement.

1.2 Words and expressions

In this Agreement, unless the context requires otherwise:

(a) the singular includes the plural and vice versa;
(b) where a word or phrase is defined, its other grammatical forms have a corresponding meaning
(c) a reference to a party, clause, paragraph, schedule or annexure is a reference to a party, clause, paragraph, schedule or annexure to or of this Agreement;
(d) a reference to this Agreement includes any schedules or annexures;
(e) headings are for convenience and do not affect interpretation;
(f) a reference to any document or agreement includes a reference to that document or agreement as amended, novated, supplemented, varied or replaced from time to time;
(g) a reference to a party includes its executors, administrators, successors, substitutes (including persons taking by novation) and permitted assigns;
(h) words and expressions denoting natural persons include bodies corporate, partnerships, associations, firms, governments and governmental authorities and agencies and vice versa;
(i) a reference to any legislation or to any provision of any legislation includes:
- (i) any modification or re-enactment of the legislation;
- (ii) any legislative provision substituted for, and all legislation, statutory instruments and regulations issued under, the legislation or provision; and
- (iii) where relevant, corresponding legislation in any Australian State or Territory;
(j) no rule of construction applies to the disadvantage of a party because that party was responsible for the preparation of this document or any part of it; and
(k) the words “including”, “for example”, “such as” or other similar expressions (in any form) are not words of limitation.

1.3 Other rules of interpretation

In this Agreement, unless expressly provided otherwise:

(a) (Business Days) if the day on or by which any act, matter or thing is to be done is a day other than a Business Day, the act, matter or thing will be done on the next Business Day; and any money falls due for payment on a date other than a Business Day, that money will be paid on the next Business Day (without interest or any other amount being payable in respect of the intervening period); and
(b) (inconsistency within document) if a clause of this Agreement is inconsistent with any other agreement, schedule or annexure, this Agreement prevails to the extent of the inconsistency.

2. ACCESS

2.1 Access

(a) In consideration of payment of the Program Fees, Ensombl grants to the Client non-exclusive and non-transferable access rights for the Client’s Users to use the Ensombl CPD Program in accordance with clause 2.2 solely for the Purpose and solely for the Term, and on the terms and conditions set out in this Agreement and the Terms of Use.
(b) The Client understands and agrees that the Client’s Super Admin will be solely responsible for the level of access to the Ensombl CPD Program granted to the Client’s other Users (within the Super Admin’s scoped remit) and as a result the Super Admin will be responsible for setting the extent to which any information and reports generated by the Ensombl CPD Program is available to be accessed or reviewed by the Client’s other Users.

2.2 Terms of Use Generally

(a) Notwithstanding any other term of this Agreement, Ensombl may (and hereby reserves the right to) suspend the Client’s access to the Ensombl CPD Program if any of the Client’s Users commits a material breach of the terms of this Agreement or the Terms of Use.
(b) Ensombl may suspend or limit access to the Ensombl CPD Program from time to time for modification, upgrading or maintenance of the Ensombl CPD Program, by providing the Client with reasonable notice.
(c) Ensombl reserves the right to amend, vary, modify and/or replace the Terms of Use of the Ensombl CPD Program at any time, and from time to time, and such amendment, variation, modification and/or replacement shall be effective immediately upon posting to the Ensombl Website. The Client’s and its User’s continued use of the Ensombl CPD Program shall be deemed to be the Client’s and that User’s acceptance of any amendments to those Terms of Use.

2.3 The Client’s obligations

(a) The Client hereby unconditionally and irrevocably agrees to procure that each of its Users accepts and agrees to comply with the Terms of Use of the Ensombl CPD Program prior to accessing or using the Ensombl CPD Program.
(b) The Client acknowledges and agrees it will:
- (i) be responsible for the accuracy and completion of the payment and contact details that the Client provides to Ensombl;
- (ii) ensure that the configuration and outcomes of the Ensombl CPD Program and the outcomes that the Ensombl CPD Program is capable of delivering meet the Client’s requirements;
- (iii) ensure that the Ensombl CPD Program is used strictly in accordance with the terms of this Agreement and strictly in compliance with all applicable laws and regulations;
- (iv) be liable for any breach of this Agreement or the Terms of Use of the Ensombl CPD Program by any of the Client’s Users;
- (v) make every reasonable effort to prevent unauthorised access to the Ensombl CPD Program;
- (vi) ensure that the Client’s network and systems (including the email, web browser and other IT systems available to the Client’s Users) comply with the specifications Ensombl provides from time to time; and
- (vii) comply with and procure that each of the Client’s Relevant Persons complies with, any request by Ensombl in connection with the Ensombl CPD Program (including the Client’s use and access), or otherwise in relation to this Agreement.

2.4 Control of Ensombl CPD Program

The Client acknowledges and agrees that it will not:

(a) use the Ensombl CPD Program for any purpose other than the Purpose;
(b) use the Ensombl CPD Program other than as provided in this Agreement;
(c) make the Ensombl CPD Program available to any person other than to a User;
(d) directly or indirectly modify, copy, translate, make any derivative works based upon, reverse engineer, decompile, disassemble, or extract any element of and/or otherwise discover or derive any source code, algorithms, methods or techniques embodied in the Ensombl CPD Program;
(e) use the Ensombl CPD Program to create, train, or improve (directly or indirectly) a substantially similar product or service, including, without limitation, any other content delivery or personal improvement platform or service;
(f) give, lease, assign, sell, resell, license, sublicense, use as a service bureau, or otherwise use the Ensombl CPD Program for a third party’s benefit unless authorised by Ensombl;
(g) use the Ensombl CPD Program to undertake any activities in relation to any information or materials which breach any laws or regulations, infringe a third party’s rights, or are contrary to any relevant standard or code;
(h) knowingly transmit to the Ensombl CPD Program or use the Ensombl CPD Program to transmit, any virus or other disabling feature;
(i) dispute Ensombl’s right to refuse a User access to the Ensombl CPD Program and will comply with any request given by Ensombl in that regard; and
(j) attempt any of the above acts or permit another person to do any of the above acts.

2.5 Availability of Ensombl CPD Program

(a) The Client acknowledges and agrees that each of the Ensombl CPD Program is provided on an “as is” and “as available” basis. While Ensombl will use reasonable endeavours to provide the Ensombl CPD Program to the Client and the Client’s Users, the Client unconditionally and irrevocably acknowledges and agrees that the Ensombl CPD Program may not be continuous or fault-free and may not be available at all times. Events which are outside Ensombl’s reasonable control may also affect the Ensombl CPD Program. The Ensombl CPD Program may contain bugs, errors or inaccuracies that could cause failures, corruption or loss of data and/or information from the Client’s device, any of the Client’s User’s devices and from peripherals (including without limitation, servers, computers, tablets and smart phones) connected to the Client’s device or to any of the Client’s User’s devices.
(b) The Client assume all risks and costs associated with the Client’s use and the use by the Client’s Users of the Ensombl CPD Program and any internet access fees, including all data and roaming changes. In addition, Ensombl is not obliged to, and may not provide the Client with any maintenance or technical support for the Ensombl CPD Program.

3. CONTENT

3.1 Third Party Products

(a) The Client acknowledges and agrees that the ongoing operation of the Ensombl CPD Program is dependent on third-party services, such as but not limited to:
- (i) hosting services;
- (ii) email services; and
- (iii) analytics services.
(b) The Client understands that certain components or features of the Ensombl CPD Program may include Third Party Products.
(c) The Client acknowledges and agrees that Ensombl:
- (i) is not responsible for the availability of any Third Party Products;
- (ii) does not endorse or warrant the accuracy of any Third Party Products; and
- (iii) shall in no way be liable for any loss or damage the Client incur or suffer, or allege to have incurred or suffered, either directly or indirectly, as a result of the Client’s use and/or reliance upon any Third Party Products.

3.2 The Client’s use of the Ensombl CPD Program

(a) The Client understands and agrees that the Ensombl CPD Program derive insights from the manner in which the Client’s Users use the Ensombl CPD Program.
(b) The Client understands and agrees that any data or insights that the Ensombl CPD Program derives from the manner in which the Client and the Client’s Users use the Ensombl CPD Program will be available to Ensombl to fix any error in the Ensombl CPD Program; to upgrade, develop or improve the Ensombl CPD Program; or to fix, upgrade, develop or improve Ensombl’s other products or services, subject to the applicable provisions of any relevant legislation including, without limitation, privacy legislation.
(c) The outcomes from the Ensombl CPD Program will be uploaded to the Client’s Ensombl Dashboard.
(d) The Ensombl CPD Program may provide links to other websites or apps. Those links are provided for convenience only and may not remain current or be maintained. Ensombl is not responsible for the content or privacy practices associated with third party service providers, websites or apps.

4. SERVICE FEES

4.1 Service Fees Generally

The Client must pay to Ensombl the Service Fees according to the Client’s then current User count. If the Client adds or removes a Users, the Service Fees will be adjusted according to the then current User count.

4.2 Service Fees for the Ensombl CPD Program

(a) The Client agrees to pay the Service Fees monthly in advance on a recuring monthly basis until Termination.
(b) The Client agrees that any paid Services Fees are forfeited upon Termination.
(c) The Client acknowledges and agrees that it is not entitled to access the Client’s Ensombl Dashboard of results or receive learning content until all outstanding Service Fees have been paid.

4.3 Alteration to Service Fees

(a) The Client acknowledges and agrees that the Service Fees may vary depending on the number of Users that the Client includes in the Client’s use of the Ensombl CPD Program.
(b) Ensombl reserves the right to change the Service Fees at any time. Any change to pricing will apply fromthe beginning of the Client’s next billing cycle, with reasonable prior notice provided. The Client’s continued use of the Ensombl CPD Program after such notice constitutes acceptance of the updated pricing. If the Client does not agree to the new pricing, the Client may termeinate this Agreement in accordance with clause 15 before the new pricing takes effect.

4.4 Payment terms

All Service Fees must be paid monthly in advance and be paid:

(a) by credit card or on receipt of an invoice; or
(b) by payment by the nominated method to Ensombl as agreed with the Client from time to time; and

in immediately available funds and without set-off, counter claim, condition or, unless required by law, deduction or withholding.

5. WARRANTIES

5.1 Mutual representations and warranties

Each party represents and warrants that:

(a) it is duly incorporated under the laws of the place of its incorporation;
(b) it has full legal capacity and power to own property and carry on its business and enter into and perform its obligations under this Agreement.
(c) it has taken all corporate and other action required and obtained or been granted all consents, approvals, permissions and authorisations, whether internal or external, necessary to enable it to enter into and perform its obligations under this Agreement;
(d) this Agreement constitutes a valid and legally binding obligation of it in accordance with its terms (except to the extent limited by equitable principles and laws affecting creditors’ rights generally); and
(e) the execution, delivery and performance of this Agreement will not contravene any law regulation, order, judgment or decree of any court or government agency which is binding on it or any of its property, any provision of its constitution or equivalent documents, or any agreement, undertaking or instrument which is binding on it or any of its property.

5.2 Ensombl warranty

5.3 Disclaimer

(a) Except for the express representations and warranties in clauses 5.1 and 5.2, Ensombl disclaims all express or implied representations, warranties, guarantees and conditions with regard to the Ensombl CPD Program, other than any express representations and warranties in the Documentation.
(b) Ensombl makes no representations or warranties regarding the suitability, performance, merchantability or fitness for purpose or the results that the Client (or any Users) may obtain by using the Ensombl CPD Program other than any express representations and warranties in any Documentation.
(c) The Client acknowledges and agrees that the Client is solely responsible for the manner in which the Client’s Users use the Ensombl CPD Program and for the manner in which the Client or any User chooses to use or ignore any learning content provided by the Ensombl CPD Program.
(d) The Client must ensure that the Ensombl CPD Program is suitable and compatible with the Client’s technical and operating environment (including any change in such environment).
(e) Ensombl will not be liable if the Client is unable to use any Ensombl CPD Program due to any incompatibility or fault or incorrect configuration of the Client’s equipment or an interference, network congestion or outages on the network connecting the Client with the Ensombl CPD Program.
(f) The Client acknowledges and agrees that Ensombl does not control the transfer of data over communications facilities.

6. LIMITATION OF LIABILITY

6.1 Exclusion

Any liability of Ensombl to the Client that cannot be excluded by Law is limited to the maximum extent permitted by Law.

6.2 Limitation of liability

Ensombl’s maximum liability to the Client in connection with this Agreement, whether in contract or tort or otherwise, is limited to:

(a) rectifying any agreed deficiencies in the Ensombl CPD Program or paying the cost of having those agreed deficiencies rectified; or
(b) if the deficiencies cannot be rectified, refunding the portion of the Program Fees paid for the period during which the deficiencies subsisted,

in either case limited to the total Program Fees paid by the Client in the 12-month period immediately preceding the event giving rise to the Claim.

6.3 Exclusion of liability

Ensombl will not be liable for any Loss to the extent that:

(a) the Claim is as a result of or in respect of a new Law, or a change in the Law (including its interpretation), announced or taking effect after the date of this Agreement;
(b) the Loss is contingent, unless and until the Loss becomes an actual Loss and is due and payable;
(c) any amount in respect of the Claim or Loss that is recoverable under an insurance policy held by the Client at the time of the Loss;
(d) the Loss is caused or contributed to by, arises from, or is connected with;
- (i) any act or omission of the Client or a User, other than done in accordance with this Agreement or at the direction of Ensombl;
- (ii) any use or application of the Services by a person or entity other than the Client or Users other than as reasonably contemplated by this Agreement;
- (iii) any works, services, goods, materials or items which do not form part of the Services (as expressed in this Agreement), or which have not been provided Ensombl;
- (iv) the Client’s computing environment, including all hardware, software, information technology and telecommunications services and systems;
- (v) any Third Party Products; and
- (vi) any modification, upgrade or maintenance carried out in accordance with clause 2.2(b).

6.4 Exclusion of consequential loss

Ensombl excludes liability for any consequential or indirect loss or damage (including by way of example, loss of profit, loss of opportunity, loss of goodwill, loss of business, damage to reputation, business interruption, loss or corruption of data and loss of privacy of communications) which may or does arise in connection with the Ensombl CPD Program or otherwise in connection with this Agreement or any breach of it, or any fraud or wilful misconduct by or on behalf of Ensombl and/or any of its Relevant Persons.

7. INDEMNITY

(a) Each Party (Indemnifying Party) irrevocably and unconditionally indemnifies and will keep indemnified and hold harmless the other Party (Indemnified Party) and each of its Relevant Persons from and against (and must upon demand pay the Indemnified Party and each of its Relevant Persons (as relevant) an amount equal to) all Loss which the Indemnified Party or any of its Relevant Persons suffers or incurs or in connection with a Claim made by any person against the Indemnified Party or any of its Relevant Persons, of any kind, which arise as a direct or indirect result of or in connection with any breach by the Indemnifying Party or any of its Relevant Persons of this Agreement.
(b) In addition, the Client irrevocably and unconditionally indemnifies and will keep indemnified Ensombl and hold harmless Ensombl and each of its Relevant Persons from and against (and must upon demand pay Ensombl and each of its Relevant Persons (as relevant) an amount equal to) all Loss which Ensombl or any of its Relevant Persons suffers or incurs or in connection with a Claim made by any person against Ensombl or any of its Relevant Persons, of any kind, which arise as a direct or indirect result of or in connection with the Client’s failure to use the Ensombl CPD Program in the manner contemplated by this Agreement (including, without limitation, clause 3.2) or which arise as a direct or indirect result of or in connection with the manner in which the Users use the Ensombl CPD Program or to the manner in which the Client or any User chooses to use or ignore any learning content generated by the Ensombl CPD Program.

8. SURVIVAL OF REPRESENTATIONS AND INDEMNITIES

8.1 Representations and warranties

8.2 Indemnities

9. INTELLECTUAL PROPERTY

9.1 Intellectual Property rights and data

(a) The parties acknowledge and agree that, notwithstanding any other provision of this Agreement, each party will continue to own its respective Background IP.
(b) Ensombl disclaims all right, title and interest (including Intellectual Property Rights) in the Content, except to the extent it forms part of Ensombl’s Background IP.
(c) Ensombl grants the Client and its Users a non-transferrable, non-exclusive, royalty-free, revocable and worldwide licence to use the Ensombl CPD Program during the Term.
(d) The Client grants Ensombl and its Relevant Persons a non-transferrable, non-exclusive, royalty-free, revocable and worldwide licence to use, store and process the Client’s Background IP during the Term:
- (i) to provide the Services, including to enable the Client and its Users to access and use the Ensombl CPD Program;
- (ii) for diagnostic purposes, and to detect, prevent or otherwise address fraud, security or technical issues;
- (iii) to generate and use the Service Data; and
- (iv) as otherwise required for Ensombl to perform its obligations or exercise its rights under this Agreement.
(e) The Client acknowledges and agrees that:
- (i) upon expiry or termination of the Term, Ensombl is not obligated to retain any Client Data and may delete the Client Data without further notice, obligation or liability to the Client.
- (ii) all right, title and interest (including all Intellectual Property Rights) in any Feedback and Service Data will automatically vest in Ensombl on creation; and
- (iii) to the extent that any such rights do not vest in Ensombl on creation, the Client hereby assigns all right, title and interest (including all Intellectual Property Rights) in the Feedback and Service Data to Ensombl.
(f) The Client warrants to Ensombl that the handling of the Client Data by Ensombl will not:
- (i) contravene or cause Ensombl to contravene any applicable Law; or
- (ii) infringe the Intellectual Property Rights or other rights of any person.

10. CONFIDENTIALITY

10.1 Ensombl’s use of Confidential Information

(a) Ensombl may use any Confidential Information owned by or pertaining to the Client to provide the Client with access rights to the Ensombl CPD Program; to fix any error in the Ensombl CPD Program; to upgrade, develop or improve the Ensombl CPD Program; or to fix, upgrade, develop or improve Ensombl’s other products or services, and Ensombl may disclose any such Confidential Information to any third party engaged by Ensombl for one of more of those purposes. Ensombl will use its reasonable efforts to ensure that such third party complies with obligations of confidence similar to those required by this clause 8.
(b) Subject to clause 8.1(a), Ensombl must keep the Client’s Confidential Information confidential and ensure that any such third parties and advisers keep it confidential and must not disclose this information to any person except:
- (i) with the Client’s prior written consent;
- (ii) to the extent required by law; or
- (iii) to any advisers who have a need to know the Confidential Information, but only to the extent they have a need to know; and before disclosure, are directed by Ensombl to keep the Confidential Information confidential.

10.2 The Client’s use of Confidential Information

(a) with the prior written consent of Ensombl;
(b) to the extent required by law; or
(c) to any of the Client’s Relevant Persons or the Client’s advisers who have a need to know the Confidential Information, but only to the extent they have a need to know; and before disclosure, are directed by the Client to keep the Confidential Information confidential.

10.3 Deemed breach

10.4 Acknowledgment

Each Recipient acknowledges that:

(a) the Disclosing Party may suffer commercial or other loss and damage if the Confidential Information of the Disclosing Party is used by any third party, or disclosed or made available to any third party by the Recipient other than in accordance with this Agreement;
(b) damages may be an inadequate remedy to protect the interests of the Disclosing Party if the Recipient breaches the provisions of this clause 8; and
(c) the Disclosing Party is entitled to seek and obtain injunctive relief or any other remedy, in any court, against the Recipient for breach of this clause 8.

11. PRIVACY

11.1 Privacy Policy

(a) Ensombl maintains a privacy policy in compliance with the provisions of the Privacy Act 1989 (Cth) for data that it collects about the Client, the Users and any other person who uses the Ensombl Program Suite (Privacy Policy).
(b) By using the Ensombl CPD Program:
- (i) the Client consents and agrees to the collection, processing and use of personal data about the Client and the Client’s Users and information about the Client and the Client’s Users from the manner in which they use or respond to or fail to respond to the Ensombl CPD Program which Ensombl will use in accordance with the Privacy Policy, which is incorporated into, and forms an integral part of this Agreement; and
- (ii) the Client acknowledges that the Client accepts and agrees to be bound by the terms of the Privacy Policy.
(c) The Client confirms and agrees that it has read and understood Privacy Policy and agrees that all personal information collected by Ensombl is subject to the Privacy Policy.

11.2 Location data and cookies

12. PUBLICITY

13. FORCE MAJEURE

Ensombl is not liable for any failure to perform or delay in performing its obligations under this Agreement if that failure is due to anything beyond Ensombl’s reasonable control.

14. NOTICES

14.1 Method

All notices, requests, demands, consents, approvals, offers, agreements or other communications (notices) given by a party under or in connection with this Agreement must be:

(a) in writing;
(b) signed by a person duly authorised by the sender or, where transmitted by e mail, sent by a person duly authorised by the sender;
(c) directed to the intended recipient’s address (as specified in clause 12.3 or as varied by any notice); and
(d) hand delivered, sent by prepaid post or transmitted by e mail to that address.

14.2 Receipt

A notice given in accordance with this clause is taken as having been given and received:

(a) if hand delivered, on delivery;
(b) if sent by prepaid post, either:
- (i) on the day on which the relevant postal service estimates delivery will occur; or
- (ii) on the first day of the period during which the relevant postal service estimates delivery will occur,
- (iii) based on the most recent estimate published by the relevant postal service as at the date on which the notice is sent; or
(c) if transmitted by e mail, on transmission,

but if the delivery or transmission is not on a Business Day or is after 5.00PM (recipient’s time) on a Business Day, the notice is taken to be received at 9.00AM (recipient’s time) on the next Business Day.

14.3 Addresses

Unless varied by notice in accordance with this clause 12, the contact details of the parties are set out at www.ensombl.com

14.4 Requirement for written notice

15. TERMINATION

15.1 Termination of the Agreement

This Agreement will terminate with immediate effect:

(a) by written agreement between the parties;
(b) by Ensombl if the Client fails to pay any outstanding Service Fees within thirty days of the date the payment was due;
(c) at the end of the then current Term unless the Client renews its Ensombl Client Account prior to the end of the then current Term; or
(d) by either party providing a written notice to the other party if an Event of Default occurs in respect of the other party.

15.2 Effect of Termination

(a) The Client and each of its Users will immediately cease to have access to the Ensombl CPD Program upon termination of this Agreement.
(b) Termination of this Agreement does not affect any accrued rights or remedies of either party.
(c) Upon the termination of this Agreement, Ensombl’s obligation to provide the Client and its Users with access to the Ensombl CPD Program will terminate and the Client will cease to use any of Ensombl’s Confidential Information in any manner whatsoever and will return all Confidential Information to Ensombl and will pay to Ensombl all amounts due under this Agreement as at the date of termination.
(d) The Client acknowledges and agrees that Ensombl will have no obligation to maintain any of the Customer’s data for more than thirty (30) days beyond the date on which this Agreement is terminated.
(e) Ensombl shall be entitled if it so elects to do so to retain (i) one copy of Client’s data if it is required to do so for reasons of compliance with its legal, regulatory or compliance obligations, and (ii) any of the Client’s data contained in electronic files created pursuant to automatic archiving and back-up procedures in the ordinary course of business, and (iii) any of the Client’s data that is held on a de-identified basis.

15.3 Survival

This clause 13.13 and clauses 1, 5.3, 5.4, 5.5, 6, 7, 8, 9, 10, 14, 15 and 16 survive termination of this Agreement.

16. DISPUTE RESOLUTION

(a) If a dispute arises out of or in relation to this Agreement (Dispute) no party to the Dispute (Disputant) will start arbitration or court proceedings (except proceedings seeking interlocutory relief) unless it has complied with this clause 14.
(b) A party claiming that a Dispute has arisen must notify each other Disputant in writing giving details of the Dispute and its proposal for a resolution.
(c) For a 14-day period after a notice is given (Initial Period) each Disputant must use all reasonable endeavours to resolve the Dispute and a director of each Disputant will meet within the first seven days of that period with that aim.
(d) If the Dispute remains unresolved at the end of the Initial Period, it must be referred, by written notice from a Disputant to the other Disputant, to mediation by:
- (i) a person agreed on by the Disputants; or
- (ii) if agreement is not reached within seven days of the notice for referral, a mediator nominated by the chairman of the New South Wales Bar Council.
(e) The mediation will be conducted using such technology as the mediator may approve in writing. If the mediator specifies that the mediation is to be conducted in person, then, unless otherwise agreed between the Disputants, the mediation will take place in Melbourne, Victoria, Australia. In all cases, the mediation will be conducted in English, and the Disputants will be entitled to legal representation.
(f) Each Disputant will use all reasonable endeavours to resolve the Dispute through mediation as soon as is practical, including, but not limited to, providing the mediator with all information relevant to the Dispute.
(g) Any information or documents disclosed by a Disputant under this clause must be kept confidential and may not be used except to attempt to resolve the Dispute.
(h) Each Disputant must bear its own costs of complying with this clause 14 and the Disputants must bear equally the mediator’s costs.
(i) If the Dispute is still not resolved within 21 days of appointment of the mediator, a Disputant that has complied with this clause 14 may request the mediator to terminate the dispute resolution process and if the mediator consents in writing to the termination of the mediation, that Disputant may terminate the dispute resolution process by giving notice to the other Disputant.

17. GST AND SALES TAX

17.1 Definitions

For the purposes of this clause 15, Taxable Supply, Consideration and GST will have the meaning given to those terms in section 195-1 of the GST Act.

17.2 Exclusive of GST

17.3 Consideration to be increased

17.4 Sales tax

18. GENERAL

18.1 Entire agreement

18.2 Paramountcy of Agreement

If this Agreement conflicts with any other document, agreement or arrangement, this Agreement prevails to the extent of the inconsistency.

18.3 Relationship between parties

18.4 No merger

The provisions of this Agreement will not merge on completion of any transaction contemplated in this Agreement and, to the extent any provision has not been fulfilled, will remain in force.

18.5 Amendment

This Agreement may not be amended or varied unless the amendment or variation is in writing signed by all parties.

18.6 Assignment

The Client must not assign, transfer or otherwise deal with this Agreement or any right under this Agreement without the prior written consent of Ensombl.

18.7 Severability

18.8 Waiver

Waiver of any power or right under this Agreement:

(a) must be in writing signed by the party entitled to the benefit of that power or right; and
(b) is effective only to the extent set out in that written waiver.

18.9 Rights, remedies additional

Any rights and remedies that a person may have under this Agreement are in addition to and do not replace or limit any other rights or remedies that the person may have.

18.10 Further assurances

18.11 Electronic delivery of document

If a party delivers an executed counterpart of this Agreement or any other document executed in connection with it (Relevant Document) by electronic means:

(a) the delivery will be deemed to be an effective delivery of an originally executed counterpart; and
(b) the party will still be obliged to deliver an originally executed counterpart, but the failure to do so will not affect the validity or effectiveness of the Relevant Document.

18.12 Governing law and jurisdiction