This Online Course/Workshop Agreement is a legal agreement between you (you or the Licensee) and Licensetothink Pty Ltd (ACN 614 678 081) trading as 'Licence To Think' and 'Zebr' of 35-37 Havelock Street, West Perth WA 6005 (we/us or the Licensor). Please read this agreement carefully because it governs your use of the Materials. If you are agreeing to this agreement not as an individual but on behalf of a company, government or other entity for which you are acting, then you means the entity, and you are binding the entity to this agreement. We may modify this agreement from time to time, subject to clause 17.

As part of this agreement, your use of the Materials is also subject to our Privacy Policy (found at https://zebr.co/privacy-policy/) and Website Usage Terms (found at https://zebr.co/disclaimer/), and the Package Terms, which are incorporated by reference into this agreement, provided that, if any provision thereof conflicts with any provision of this agreement, the Privacy Policy and/or Website Usage Terms will prevail.

WARNING: We make no guarantee, and expressly disclaims against any warranty or representation, whether express or implied, with respect to any specific or general outcome or result of you accessing the Materials, or in connection with any use or reliance on the Materials. The Materials are provided on an ‘as is’ basis and should not be construed as being professional advice, guidance, or instruction, and are not intended to be applied or acted on by any individual. You are responsible for you own results and outcomes in accessing the Materials.

1.1 The following definitions apply in this agreement unless the context requires otherwise:

Authorised Users means the specific individuals whom you designate to use the Materials and for whom you have paid the required fees.
Business Day means a day (other than a Saturday, Sunday or public holiday) when banks in Perth, Western Australia are open for business.
Change of Control means, in respect of a particular entity, a person who Controls that entity ceasing to do so or another person acquiring Control of it.
Claim means any claim, complaint, demand, proceeding, suit, litigation, action, cause of action or other legal recourse (whether in contract, tort, under statute or otherwise).
Commencement Date means the later of, the date on which your first payment is made to us in respect of this agreement, or the date on which access to the Materials is granted.
Commitment Period has the meaning given in clause 6.
Confidential Information means all information (however recorded or preserved) disclosed or provided (whether in writing, orally or by any other means and whether directly or indirectly) by one party to the other before, on or after the date of this agreement in connection with this agreement or the Materials where such information is identified as confidential at or before the time of its disclosure or ought reasonably be considered confidential based on its content or nature or the manner of its disclosure and, for the avoidance of doubt, includes the existence and terms of this agreement and all User Data.
Consumer Law means the Competition and Consumer Act 2010 (Cth).
Control has the meaning given in Section 50AA of the Corporations Act.
Corporations Act means the Corporations Act 2001 (Cth).
Dispose means, in relation to any right, benefit or property, to sell, assign, transfer, alienate, rent, lease, distribute, sublicence alienate or create a trust or Encumbrance over or in respect of that right, benefit or property.
Documentation means all information (however recorded or preserved) relating to the Materials (including all Code, manuals, notes, user guides, functional and technical drawings, specifications, data, reports, designs, videos, flow charts and listings that are designed to assist or supplement the development, understanding or use of the Materials).
Encumbrance means any mortgage, charge (fixed or floating), pledge, lien, hypothecation, guarantee, trust, right of set-off or other third-party right or interest (legal or equitable) including any assignment by way of security, reservation of title or other security interest of any kind, howsoever created or arising, or any other agreement or arrangement (including a sale and repurchase agreement) having similar effect.
Fee means the fee payable by you for your use of the Materials as set out in the Package Terms.

Force Majeure Event means any:

• (a) natural disaster (such as flood, earthquake, windstorm, etc);
• (b) outbreak or escalation of hostilities (whether or not war has been declared) or any other unlawful act against public order or authority;
• (c) industrial dispute;
• (d) government restraint;
• (e) unavailability, shortage, breakage or failure of essential equipment, communication channels, facilities, machinery or electricity supply (not caused by the relevant party);
• (f) shut down or corruption of, or interruption to, the internet or network servers (not caused by the relevant party); or
• (g) other event that is not within the reasonable control of the parties and which, by its nature, could not have been foreseen by the relevant party or, if it could have been foreseen, was unavoidable.

Governmental Agency means any government or governmental, semi-governmental, administrative, fiscal or judicial body, department, commission, authority, tribunal, agency or entity whether foreign, federal, state, territorial or local.
GST Act means A New Tax System (Goods and Services Tax) Act 1999 (Cth).
GST has the same meaning given to that expression in the GST Law.
GST Law has the same meaning given to that expression in the GST Act.
Hosted Servers means servers owned and/or used by us for the purposes of hosting the Materials and/or User Data.
Improvements means, in respect of the Materials and/or any Documentation relating thereto, any developments, enhancements, modifications, derivatives, updates or other improvements thereof, including any customisations that are made at your request or upon your direction, even if such customisations incorporate know-how, ideas, requests or suggestions made or provided by you.

Insolvency Event means, in respect of a party:

• (a) where the party is an individual, that party commits an act of bankruptcy or is declared bankrupt or insolvent or that party’s estate otherwise becomes liable to be dealt with under any law relating to bankruptcy or insolvency;
• (b) where the party is a company, a resolution is passed or court order made for the winding up of that party or an administrator is appointed to that party pursuant to any relevant law;
• (c) a receiver or manager or receiver and manager is appointed to the assets or undertaking of the party or any part thereof; or
• (d) the party is otherwise unable to pay its debts as and when they fall due.

IP Ownership Claim has the meaning given in clause 14.1.
IP Rights means patents, rights to inventions, copyright and related rights, trademarks and service marks, trade names and domain names, rights in get-up, rights to goodwill or to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights in confidential information (including know-how, trade secrets and marketing secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications (or rights to apply) for, and renewals or extensions of, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Licence means the licence to use the Materials and Documentation provided by us to you pursuant to clause 2.

Losses means any loss, damage, debt, cost, charge, expense, fine, outgoing, penalty, diminution in value, deficiency or other liability of any kind or character (including legal and other professional fees and expenses on a full indemnity basis) that a party pays, suffers or incurs or is liable for, including all:

• (a) liabilities on account of Tax;

• (b) interest and other amounts payable to third parties;
• (c) legal and other professional fees and expenses (on a full indemnity basis) and other costs incurred in connection with investigating, defending or settling any Claim, whether or not resulting in any liability; and
• (d) all amounts paid in settlement of any Claim.

Materials means any resources or information provided by us under this Agreement or as set out in the Package Terms, and may include, but is not limited to, the course or workshop modules, information, documentation, data, including the Documentation and all updates and upgrades of the Materials and Documentation.
Modules means any course or workshop, whether individually or collectively and including any part thereof, provided by us under this Agreement or as set out in the Package Terms. This includes any Module, howsoever delivered including any Materials and any live or recorded interaction, communication, or feedback with us provided as part or any Module.
Package Terms means the pricing and inclusions for the Licence as specified on the Website at the time of your initial purchase or as otherwise agreed in writing by the Licensor.
Representatives means, in respect of a person, its employees, consultants, agents and advisors and, in respect of a body corporate, includes its officers.
Trademarks means Our trademarks and service marks that are used or displayed in the Materials and/or the Website.
User Data means any data, content, code, video, images or other materials of any type that you submit, upload, transmit or otherwise make available to or through the Materials.
Website means our website located at https://zebr.co/ and pages within that domain and any of its subdomains, including https://zebr.co/shop/a-r-t-express/ and https://zebr.co/shop/a-r-t-in-depth/.

1.2 The following rules of interpretation apply in this agreement unless the context requires otherwise:

• (a) headings in this agreement are for convenience only and do not affect its interpretation or construction;
• (b) no rule of construction applies to the disadvantage of a party because this agreement is prepared by (or on behalf of) that party;
• (c) where any word or phrase is defined, any other part of speech or other grammatical form of that word or phrase has a cognate meaning;
• (d) a reference to a document (including this agreement) is a reference to that document (including any schedules and annexures) as amended, consolidated, supplemented, novated or replaced;
• (e) an expression importing a natural person includes any individual, corporation or other body corporate, partnership, trust or association and any Governmental Agency and that person's personal representatives, successors, permitted assigns, substitutes, executors and administrators;
• (f) a reference to time refers to the time in Perth, Western Australia and time is of the essence;
• (g) all monetary amounts are in Australian currency;
• (h) the word “month” means calendar month and the word “year” means 12 calendar months;
• (i) the meaning of general words is not limited by specific examples introduced by “include”, “includes”, "including", "for example", "in particular", “such as” or similar expressions;
• (j) a reference to a “party” is a reference to a party to this agreement and a reference to a “third party” is a reference to a person that is not a party to this agreement;
• (k) a reference to the termination of this agreement includes a reference to the expiry or revocation of the Licence in accordance with the terms of this agreement;
• (l) a reference to a liability includes a reference to a present, prospective, future or contingent liability;
• (m) a reference to any thing is a reference to the whole and each part of it;
• (n) a reference to a group of persons is a reference to all of them collectively and to each of them individually;
• (o) words in the singular include the plural and vice versa; and
• (p) a reference to one gender includes a reference to the other genders.

2.1  This agreement sets out our standard licence terms for access and use of the Materials. The particular pricing and inclusions of your Licence are set out in your Package Terms. To the extent of any inconsistency between the terms of this standard agreement and your Package Terms, the Package Terms will prevail.

2.2  Unless otherwise stated in the Package Terms, purchase of each package only permits on Authorised User. Additional Licences will need to be purchased for any additional Authorised User you wish to have access to the Materials.

2.3  Our courses and workshops are comprised of the Materials and may be divided into Modules as set out in the Package Terms.

2.4  To the extent that the Materials are divided into designated Modules, you will have access only to the Modules that you are entitled to use as set out in the Package Terms.

2.5  Where Package Terms include multiple Modules, access to some Modules and associated Materials may only be accessible following completion of pre-requisite Modules or other requirements as set out in the Package Terms.

2.6  Access to Modules or specific Materials may be limited to a set Commitment Period as set out in the Package Terms after which your access may be terminated or suspended regardless of whether you have completed or accessed all (or any) of the relevant Modules or Materials.

2.7 Access to the Materials (and the Third-Party Platform) depends on your having valid and current access permissions that are recognised by the Hosted Services.

2.8  You acknowledge and agree that from time to time you may encounter issues with respect to access and use of the Materials including, but not limited to:

• (a) The Materials may have errors or defects;
• (b) The Materials (or any Hosted Server, Third Party Platform, or relevant portal or application) may not be accessible or functioning correctly, or may be subject to maintenance, defects, updates, or outages; and
• (c) Messages, information, or Materials sent through any Hosted Server, Third Party Platform, or relevant portal or application may not be delivered promptly.

2.9 The Materials with respect to any Module may be delivered through a variety of mediums with may include, but are not limited to:

• (a) Written resources and reading materials;
• (b) Pre-recorded video and/or audio materials
• (c) One-on-one  video and/or audio sessions with us;
• (d) Group video and/or audio sessions with us and others;
• (e) Group in person sessions with us and others;
• (f) Timed assessments to certify the completion of a Module (or part thereof).
• (g) all User Data will be stored on the Hosted Servers, rather than on your computer equipment.

2.10  You acknowledge and agree that all of the above delivery mediums will not be available for all Modules and or Materials.

2.11 For Group Sessions delivered by video and/or audio, dates and times for the Session and instructions for attending the Session will be set out on the Portal. You must use the relevant video or audio-conferencing software to attend any live Group Sessions.

2.12  We will use our best efforts to ensure all live Group Sessions delivered by video and/or audio are recorded and made available on the Portal however due to technical issues, we cannot guarantee that all live Group Sessions will be recorded without issue and made available on the Portal.

2.13  For Group Sessions delivered in person, all arrangements including dates, times, venues, and any additional costs for expenses incurred will be agreed in writing between the parties and acceptance of any such arrangements will be at our absolute discretion.

2.14 For One-on-one Sessions, you will be provided a link (on the Website and/or Portal) to book an appointment with us.

2.16  You acknowledge and agree that the Materials will be provided to you as a hosted service through a Third-Party Platform, rather than as a standalone product provided in physical form or downloaded to/installed on your computer equipment and that accordingly:

• (a) you will have access to the Materials only through a web browser interface or may require a portal or application to access the Third-Party Platform.
• (b) All User Data will be stored on the Hosted Servers (and/or any Third-Party Platform or application as applicable), rather than on your computer equipment.

3.1  You may be provided with access to Materials as a result of accessing the Modules set out in the Package Terms. Subject to the provisions of this agreement, with effect on and from the Commencement Date, we hereby grant to you a non-exclusive, non-transferable, non-sublicensable, limited licence to use the Materials worldwide, but only for your own personal, non-commercial use for the completion of the Modules, and in accordance with the terms of this agreement. The Materials may not be used for any other purpose, and this Licence terminates upon your completion of the Modules specified in the Package Terms, or termination or suspension of this Agreement. 

4.1  You must:

• (a) ensure that only one Authorised User can access and use the Materials;
• (b) only disclose your account access details on a need-to-know basis;
• (c) ensure that any person who has access to the Materials:
  • (i) are made aware of the terms of this agreement; and
  • (ii) do not do, or omit to do, anything which, if done or omitted to be done by you, would constitute a breach of this agreement by you,
    
• and you acknowledge and agree that you will be responsible for, and liable to us in respect of, the actions and omissions of any and all of your Representatives in relation to the Materials as if they were your own actions or omissions;
• (d) contact us immediately if you have any reason to believe that any of your passwords have been compromised or used without your authority;
• (e) keep your account access details secure and confidential and change your passwords whenever directed to do so by us;
• (f) where directed, provide us with details of any other professional parties linked to your account (such as IT providers);
• (g) keep your account details and other personal information, including your email address, updated and provide us with notice of any changes to that information so that we can contact you as needed in connection with your account; and
• (h) keep your internet privacy and virus detection software up to date.

4.2  You must not:

• (a) provide access to the Materials to a third party or otherwise Dispose of your access to the Materials, whether in whole or in part, to any person without our prior written consent under clause 17;
• (b) use the Materials:
  • (i) in any way other than pursuant to the Licence granted to you under clause 2;
  • (ii) in any way that could damage our reputation, or the goodwill or IP Rights associated with the Materials;
  • (iii) for competitive analysis or to build competitive products; or
  • (iv) to share inappropriate content or material (involving, for example, nudity, bestiality, pornography, offensive language, graphic violence, or criminal activity);
• (c) use any software’s or services in conjunction with the Materials that modifies or reroutes, or attempts to modify or reroute, access or use of the Materials;
• (d) download, record, screenshot, capture, or otherwise seek to record or retain the Materials without our prior written consent;
• (e) share, provide, or disclose the Materials to any other person, or use the Materials for any purpose other than as expressly agreed by us in writing;
• (f) authorise any third party to access and/or use the Materials on your behalf using any automated process such as a bot or spider or periodic caching of information stored by the Hosted Server or any Third-Party Platform;
• (g) reverse engineer, decompile, disassemble, decrypt, hack, emulate, exploit, adapt, modify, translate, frame or reformat any part of the Materials or otherwise seek to obtain or derive any of the Source Code or any underlying ideas, algorithms or file formats of, or any components used in, the Materials by any means whatsoever, or attempt to do any of the foregoing;
• (h) modify or remove any copyright or proprietary notices pertaining to the Materials;
• (i) disclose your passwords to any third party;
• (j) circumvent any restrictions on access to, or availability of, the Materials;
• (k) attempt to access or control the Materials or the Hosted Servers except through the browser interfaces to which we have given you access;
• (l) engage in activity that is harmful to you, the Materials or others (e.g., transmitting viruses, stalking, posting terrorist or violent extremist content, communicating hate speech or advocating violence against others);
• (m) infringe upon the rights of others (eg, unauthorised sharing of copyrighted material); or
• (n) engage in activity that violates the privacy of others.

5.1  You acknowledge that your use of the Materials is subject to our Privacy Policy. We reserve the right to monitor, collect and store your communications with us (whether by email, facsimile or any other form of transmission) for the purposes of our business needs, including quality control and security.

5.2  In relation to any Personal Information that is included in any User Data, all parties must comply with the Privacy Act and any guidelines issued from time to time by the Commonwealth Privacy Commissioner.

5.3  While we use our best efforts to ensure that your information, data or other electronic materials that is being backed-up or stored as part of your access and use of the Materials will be stored securely, to the maximum extent permitted by law, we exclude all liability to you or any other person for any unauthorised use, destruction, loss, damage or alteration to the Data, including due to hacking, malware, ransomware, viruses, malicious computer code or other forms of interference

6.1  The Licence and your access to the Materials will commence on the Commencement Date or, with respect to each individual Module or Materials included in each Module or subsequent Modules, on the schedule specified in the Package Terms.

6.2  Unless otherwise specified in the Package Terms, the Licence and your access to the Materials with respect to each individual Module will continue in force for 6 months (the Commitment Period) unless terminated or revoked earlier in accordance with clause 8. Any renewals or extension must be mutually agreed upon by the parties in writing.

7.1  You must pay the Fee to us in full and on time in the currency specified in the Package Terms in accordance with this clause 7. Your use of, and access to, the Materials is conditional upon your payment of the Fee.

7.2  You accept that you are required to pay the full amount of the Fees specified in the Package Terms even if you do not complete or utilise any or all of the Modules specified in the Package Terms.

7.3  In consideration for granting the Licence, if your Package Terms specify lump sum payment of the Fee, you will pay to us the Fee on the Commencement Date.

7.4  In consideration for granting the Licence, if your Package Terms specify periodic payments of the Fee, you must pay the applicable Fees to us periodically in accordance with the Package Terms. Unless specified otherwise in the Package Terms, such Fees are payable in advance commencing on the Commencement Date for the duration of your Licence. The amount due for any renewal term will be immediately payable in full as at the first day of that renewed term.

7.5 You agree that you are authorising recurring payments and you authorise us to charge you for the Materials at the recurring intervals you have agreed to until the Licence is validly terminated by you or by us pursuant to clause 8. We may suspend or cancel the Licence if we do not receive an on time, full payment from you.

7.6  All payments must be made in full at the time stated on any relevant order form or invoice, or if none is stated, within 15 Business Days after the date on which you receive a relevant tax invoice from us. Failure to pay in full by that due date is a fundamental breach of this agreement.

7.7  If paying manually against an invoice, payment must be made by electronic funds transfer into our nominated bank account or by credit or debit card.

7.8  If paying automatically by direct debit, we will deduct the amount due on your account at the due date of your direct debit from your nominated bank account or credit or debit card.

7.9  You must ensure that:

• (a) the account information supplied to us is correct;
• (b) the nominated account can accept direct debits; and
• (c) sufficient funds are available in the nominated account to meet each payment on its due date.

7.10  You must advise us if:

• (a) your nominated account is transferred or closed, or the direct debit is cancelled. You must do so as soon as you become aware of this change; and/or
• (b) you wish to change your direct debit account or personal details. For any changes to take effect for your next direct debit payment, we must receive your request at least 10 Business Days before that direct debit due date. Changes made to your billing account will not affect charges we submit to your billing account before we could reasonably act on your changes to your billing account.

7.11 If a direct debit is scheduled to be made on a day other than a Business Day, that direct debit will be made on the next Business Day.

7.12  If a payment is dishonoured because there are insufficient funds in your nominated account, we:

• (a) will notify you and try to deduct the payment on another day;
• (b) may make other attempts to take the payment;
• (c) may cancel your direct debit agreement; and/or
• (d) may terminate your access to the Materials.

7.13  Payment by credit or debit card is additionally subject to the usage terms and policies of the relevant third-party payment processor. At present, our primary payment processor is Stripe. Stripe’s policies and usage terms are available through their website (https://stripe.com/).

7.14  Payments made by credit or debit card will attract a processing fee of 2.00% + GST.

7.15  If any payment is returned unpaid or if any credit card or similar transaction is rejected or denied, we reserve the right to collect any applicable return item, rejection or insufficient funds fee and process any such fee as an additional payment. If you initiate a chargeback or reversal with your bank for your payment of the Fee, we will deem you to have cancelled as of the date that the original payment was made, and you authorise us to immediately terminate the Licence and revoke your access to the Materials.

7.16  Except as expressly provided otherwise in this agreement and where required by the Consumer Law, all amounts paid on account of Fees are non-refundable.

7.17  The parties acknowledge and agree that – unless otherwise required by law, but subject to clause 7.15 – all amounts payable under this agreement are to be paid without set-off, counterclaim, withholding, deduction or claim to a lien whatsoever (whether or not any such set-off, counterclaim, withholding, deduction or lien arises under this agreement).

7.18  If a party is required by law to make a deduction or withholding in respect of any sum payable under this agreement, that party must, at the same time as the sum that is the subject of the deduction or withholding is payable, make a payment to the recipient of such additional amount as is required to ensure that the net amount received by the recipient will equal the full amount that would have been received by it had no such deduction or withholding been required to be made.

8.1  We may, with or without notice, suspend your access to all or part of the Materials if you breach this agreement or do, or allow to be done, anything that may have the effect of jeopardising the operation of the Materials for other users.

8.2  We may revoke the Licence or terminate this agreement at any time and for any reason at our absolute discretion by giving written notice of not less than 4 weeks to you.

8.3  Subject to clause 8.5, you may terminate this agreement for any reason at your absolute discretion upon not less than 6 weeks of notice by sending a written notice to us by email or post at the following address:

• To:    Student Support
• Post:    PO Box 4090, Alexander Heights, WA, 6064, AUSTRALIA
• Email:    support@zebr.co

8.4  Your access to the Materials will end at the expiry of the billing period in which your termination under clause 8.3 takes effect. You will remain committed for that billing period and, in accordance with clause 7.13, amounts paid by you prior to your termination under clause 8.3 taking effect will be non-refundable, except where required by the Consumer Law. You should refer to the Package Terms as you may be obligated to pay cancellation charges.

8.5  Notwithstanding any termination under clause 8.3, you will remain committed for the Commitment Period. You will retain access to the Materials for the Commitment Period and will continue to be liable in full for all payments that are referrable to the Commitment Period, which are non-refundable, except where required by the Consumer Law.

8.6  Notwithstanding clauses 8.2 and 8.3, each party may terminate this agreement with immediate effect by written notice to the other party if:

• (a) the other party materially breaches this agreement where:
  • (i) such breach is irremediable; or
  • (ii) if remediable, the other party fails to remedy the breach within 14 days of written notice by the terminating party;
• (b) an Insolvency Event occurs in respect of the other party; or
• (c) a Force Majeure Event preventing the performance of this agreement continues for more than 20 Business Days.

8.7  In no event shall termination of this agreement release you from the obligation to pay any amounts that became due and payable on or before the date of termination.

9.1 You acknowledge and agree that, following termination of this agreement in any circumstances, you will not have further access to the Materials or your User Data, which will remain stored by us.

9.2  If this agreement is terminated or expires for any reason, then, in addition, and without prejudice, to any other rights or remedies:

• (a) the parties are immediately released from their obligations under this agreement, other than under clauses 5 (Privacy), 7 (Payment of the Fee), 8 (Revocation and termination), 10 (Warranties), 11 (Disclaimer of warranties and limitation of liability), 12 (Indemnities), 13 (Intellectual property rights), 14 (IP Ownership Claims), 15 (Confidentiality), 16 (GST), 20 (General) and this clause 9, which shall survive any termination of this agreement; 
• (b) your right to use the Materials and the Trademarks immediately ceases, the licence granted to you under clause 2 immediately terminates and you must immediately remove all Materials and Trademarks from your computer systems and records; and
• (c) we reserve the right to delete your account.

9.3  Termination of this agreement will not affect any rights or liabilities that the parties have accrued under it prior to such termination.

10.1  You represent and warrant that:

• (a) you are authorised to use the payment method you provided and that any payment information you provide is true and accurate;
• (b) you have the legal power and authority to execute, deliver and perform your obligations under this agreement and the transactions contemplated by this agreement, and no limit on your powers will be exceeded as a result of the transactions contemplated by this agreement;
• (c) you have taken all necessary actions, and obtained all required consents, to enable you to execute, deliver and perform your obligations under this agreement, and any such authorisations are in full force and effect;
• (d) your obligations under this agreement are legal, valid, binding and enforceable; 
• (e) you have read and understood all terms of this Agreement including any disclaimers and limitations of liability with respect the Materials and your access and use of the Materials; and
• (f) the execution, delivery and performance of this agreement by you does not and will not violate, breach, or result in the contravention of: 
  • (i) any law, resolution or authorisation;
  • (ii) any document that is binding upon you or any of your assets; or
  • (iii) if applicable, your constitution or other constituent documents.

11.1  To the maximum extent permitted by law, we expressly disclaim all representations, warranties and guarantees (whether implied, statutory or otherwise) in relation to the Materials, including any implied warranty of merchantability, fitness for a particular purpose or non-infringement.

11.2  The Materials are not provided for, or intended to be, advice, guidance, or instruction for the provision of (or in place of) therapeutic services, and are not intended to be applied or acted on by any individual.

11.3  The Materials are provided strictly on an ‘as is’ basis and, to the maximum extent permitted by law, we make no representation, warranty or guarantee as to the reliability, timeliness, quality, suitability, truth, availability, accuracy or completeness of the Materials and in particular we do not represent, warrant or guarantee that:

• (a) your use of the Materials will be secure, timely, uninterrupted or error-free or operate in combination with any other hardware, Materials, system or data;
• (b) the Materials will meet your requirements or expectations;
• (c) errors or defects will be corrected; or
• (d) the Materials will be free of viruses or other harmful components.

11.4  You may choose to use or procure other third-party products or services in connection with the Materials, including third-party materials, goods, therapies, training or other services. Your receipt or use of any third-party products or services is subject to a separate agreement between you and the third-party provider.

11.5  If you enable or use third-party products or services with the Materials, you acknowledge that the third-party providers may access or use your data as required for the interoperation of their products and services with the Materials. This may include transmitting, transferring, modifying or deleting your data or storing your data on systems belonging to third-party providers or other third parties. Any third-party provider’s use of your data is subject to the applicable agreement between you and such third-party provider. We are not responsible for any access to, or use of, your data by third-party providers or their products or services, or for the security or privacy practices of any third-party provider or its products or services. You are solely responsible for your decision to permit any third-party provider or third-party product or service to use your data.

11.6  We disclaim all liability and responsibility for any third-party products or services (whether support, availability, security or otherwise) or for the acts or omissions of any third-party providers or vendors.

11.7  To the maximum extent permitted by law, we exclude all liability to you or any other person for any Losses arising directly or indirectly out of, or in connection with, any use of, or reliance upon, the Materials by you or any other person (provided that nothing in this clause 11.7 absolves us of our obligations as expressly set out in this agreement, subject always to the liability cap under clause 11.9).

11.8  You hereby irrevocably release us from, waive the right to bring, and covenant not to bring, any Claim that you have, or would otherwise have had, against us arising directly or indirectly out of, or in connection with, any use of, or reliance upon, the Materials by you or any other person and acknowledge and agree that this waiver and release may be pleaded as a bar and complete defence to any such Claims (provided that nothing in this clause 11.8 absolves us of our obligations as expressly set out in this agreement, subject always to the liability cap under clause 11.9).

11.9  Our total aggregate liability for all Claims under or in respect of this agreement is limited to the aggregate amount of the Fees paid by you under this agreement.

11.10  Without limiting or derogating from the liability cap under clause 11.9, to the maximum extent permitted by law, we expressly limit our liability for breach of any non-excludable condition or warranty implied by virtue of any legislation to the following remedies (the choice of which is to be at our sole discretion):

• (a) the supply of the services again; and/or
• (b) the payment of the cost of having the services supplied again.

11.11  To the maximum extent permitted by law, and without limiting any other provision of this agreement, we exclude liability for any delay in performing any of our obligations under this agreement where such delay is caused by a Force Majeure Event, and we shall be entitled to a reasonable extension of time for the performance of such obligations.

12.1  You will indemnify and hold us harmless against all Losses that may be suffered or incurred by us arising directly or indirectly out of, or in connection with:

• (a) any breach of this agreement by you;
• (b) your negligent acts or omissions; and/or
• (c) any Claim brought, or threatened to be brought, by a third party against us alleging that your use of the Materials constitutes an infringement of any IP Rights of the third party.

13.1  You acknowledge and agree that:

• (a) this agreement does not transfer or assign any IP Rights to you;
• (b) we own and retain all IP Rights in the Materials and Documentation including any and all Improvements that may be created or developed by you; and
• (c) you have no IP Rights in any part of the Materials or Documentation, including any Improvements thereof, other than the rights temporarily granted to you pursuant to clause 2 and you must not take any step to invalidate or prejudice our title thereto.

13.2  The Trademarks are registered and unregistered trademarks owned by us and/or our licensors or affiliates. You may not use any of the Trademarks without our prior written consent. You must comply with our reasonable usage guidelines and directions with respect to the Trademarks as notified to you from time to time.

13.3  We welcome your comments, feedback, suggestions, information and other communications regarding the Materials and Support and Maintenance – however, please note that:

• (a) any such feedback will be and remain our exclusive property, and you will relinquish any right, title or interest in such feedback immediately upon it being sent to us;
• (b) we will be entitled to use, exploit, improve, make, copy, disclose, display or perform publicly, distribute, improve and modify any such feedback for any purpose whatsoever without restriction; and
• (c) we will not compensate you for any such feedback.

14.1  You must promptly notify us of any actual or suspected infringement of, or attack or challenge to the ownership or registration of, any of our IP Rights in the Materials that comes to your attention (each an IP Ownership Claim).

14.2  We will have absolute discretion to decide what action to take in respect of any IP Ownership Claim and sole conduct of any related legal proceedings (including any legal proceedings conducted in our name or in the joint names of you and us). Accordingly, you must:

• (a) not bring any legal proceedings in respect of any IP Ownership Claim without our prior written consent; and
• (b) cooperate fully with us, and take all steps requested by us in our discretion, in defending any IP Ownership Claim, provided that we will be responsible for the cost of any related legal proceedings and entitled to any damages, account of profits and/or awards of costs recovered in respect thereof,
  

and you must ensure that any and all of your assignees or sub-licensees do the same.

15.1  Subject to clause 15.2, you must:

• (a) keep the Confidential Information confidential and not disclose or make available that Confidential Information in whole or in part to any third party;

• (b) not use or exploit that Confidential Information in any way except for the purposes of complying with your obligations and exercising your rights under this agreement; and
• (c) implement and maintain effective security measures to prevent unauthorised use and disclosure of that Confidential Information whilst it is in your possession or control.

15.2  The obligations in clause 15.1 do not apply to any Confidential Information which (as shown by appropriate documentation and other evidence in the Recipient’s possession):

• (a) is required by law or court order to be disclosed, provided that you must:
  • (i) promptly notify the Us in writing in advance of any such disclosure, if reasonably practicable; and
  • (ii) reasonably assist the Us in obtaining confidential treatment for, or avoiding or minimising such disclosure of, the relevant Confidential Information to the extent reasonably requested by Us;
• (b) is authorised for release or use by our written pre-approval but only to the extent of such written pre-approval.

16.1 In this clause 16, terms used have the meanings given to them by the GST Law.

16.2  Unless expressly stated otherwise, any sum payable, or amount used in the calculation of a sum payable, under this agreement has been determined without regard to GST and must be increased on account of any GST payable under this clause 16.

16.3  If any GST is payable on any taxable supply made under this agreement to the recipient by any other party, the recipient must pay the GST to us on the earlier of:

• (a) the time of making payment of any monetary consideration on which the GST is calculated; and
• (b) the issue of an invoice relating to the taxable supply.

16.4  The recipient must pay the GST in the same manner as making payment of any monetary consideration on which the GST is calculated. We must provide, as a precondition to payment by the recipient of the GST, a tax invoice or a document that the Commissioner will treat as a tax invoice.

16.5  The amount recoverable on account of GST under this clause 16 by us will include any fines, penalties, interest and other charges incurred as a consequence of any late payment or other default by the recipient under this clause 16.

16.6  If any party is required to pay, reimburse or indemnify another party for the whole or any part of any cost, expense, loss, liability or other amount that the other party has incurred or will incur in connection with this agreement, the amount must be reduced by the amount for which the other party (or Representative if this is not the other party) can claim an input tax credit, partial input tax credit or other similar offset.

17.1  You must not Dispose of your access to the Materials, the Licence, the benefit of this agreement or any rights or obligations hereunder, whether in whole or in part, to any person without our prior written consent, which we may withhold or delay at our absolute discretion. We may provide any such consent subject to such conditions as we choose at our absolute discretion to impose. For the purposes of this clause 17.1, a Change of Control in respect of you will be deemed to constitute a Disposal of your rights under this agreement requiring our prior written consent in accordance with this clause 17.1.

17.2  You must ensure that any and all of your assignees and/or sub-licensees:

• (a) comply with the obligations in this agreement as if each of them was a party to this agreement in the place of you; and
• (b) do not do, or omit to do, anything which, if done or omitted to be done by you, would constitute a breach of this agreement by you,
  

and you will be responsible for, and liable to us in respect of, the actions and/or omissions of any and all of your assignees and sub-licensees in relation to the Materials as if they were your actions and/or omissions.

18.1  We may modify the terms and conditions of this agreement from time to time, with notice given to you by email, through the Materials or through our Website. Such modifications will become effective 10 days after the notice is given. Your continued use of the Materials following notice of such modifications shall be deemed to be your acceptance of any such modifications to this agreement. If you do not agree to any such modifications, you must immediately stop using the Materials and destroy all copies of the Materials in your possession or control.

19.1  We will send you notices via email or regular mail. We may also display notices via any communication means provided through any portal or Hosted Services used for the purpose of delivering the Materials and/or the Website.

19.2  A notice is deemed to have been received:

• (a) if delivered personally or by courier, at the time of delivery;
• (b) if sent by pre-paid post, 48 hours from the date of posting;
• (c) if sent by airmail, five days after the date of posting;
• (d) if sent by email, 4 hours after the sent time (as recorded on the sender’s email server), unless the sender receives a notice from the party’s email server or internet service provider that the message has not been delivered to the; or
• (e) if displayed via any portal or application used for the delivery of the Materials and/or the Website, at the time the notice is posted,

except that, if such deemed receipt is not within business hours (meaning 9:00 am to 5:30 pm on a Business Day), the notice will be deemed to have been received at the next commencement of business hours in the place of deemed receipt.

19.3  To prove service, it is sufficient to prove that:

• (a) in the case of post – that the envelope containing the notice was properly addressed and posted;
• (b) in the case of email – the email was transmitted to the party’s email server or internet service provider; and
• (c) in the case of any portal or application used for the delivery of the Materials and/or the Website – the notice was posted.

20.1  Each party must (at its own expense, unless otherwise provided in this agreement) promptly execute and deliver all such documents, and do all such things, as any other party may from time to time reasonably require for the purpose of giving full effect to the provisions of this agreement.

20.2  This agreement does not create any partnership, joint venture or agency relationship between the parties. No party has the authority to bind any other party.

20.3  If you are acquiring the Materials on behalf of another person or entity, you represent and warrant that you have the authority to bind the party or entity for which you are acquiring the Materials to the terms and conditions of this agreement.

20.4  This agreement contains the entire understanding between the parties in relation to its subject matter and supersedes any previous arrangement, understanding or agreement relating to its subject matter. There are no express or implied conditions, warranties, promises, representations or obligations, written or oral, in relation to this agreement other than those expressly stated in it or necessarily implied by statute.

20.5  If a provision of this agreement is invalid or unenforceable in a jurisdiction:

• (a) it is to be read down or severed in that jurisdiction to the extent of the invalidity or unenforceability; and
• (b) that fact does not affect the validity or enforceability of that provision in another jurisdiction, or the remaining provisions.

20.6  No failure, delay, relaxation or indulgence by a party in exercising any power or right conferred upon it under this agreement will operate as a waiver of that power or right. No single or partial exercise of any power or right precludes any other or future exercise of it, or the exercise of any other power or right under this agreement.

20.7  If any provision of this agreement is otherwise unenforceable by virtue of the operation of the Treasury Laws Amendment, upon the occurrence of an Insolvency Event in respect of a particular party, notwithstanding any other provision of this agreement, to the maximum extent permitted by law:

• (a) time is of the essence in respect of all obligations of that party under this agreement (whether falling due for performance before, upon or after the occurrence of that Insolvency Event); and
• (b) any breach of this agreement by that party (whether occurring before, upon or after the occurrence of that Insolvency Event), however minor, will (alone or, severally, in combination with the occurrence of that Insolvency Event) be deemed to be a material breach of this agreement,

and, if any such material breach has occurred or occurs, the parties acknowledge and agree that such provision will instead be enforceable by virtue of the occurrence of that material breach.

20.8  This agreement and any disputes or claims arising out of or in connection with its subject matter or formation (including non-contractual disputes or claims) are governed by, and shall be construed in accordance with, the laws of Western Australia, Australia.

20.9  The parties irrevocably agree that the courts of Western Australia, Australia have exclusive jurisdiction to settle any dispute or claim that arises out of, or in connection with, this agreement or its subject matter or formation (including non-contractual disputes or claims).

20.10  Should you have any questions concerning the Materials, Support and Maintenance and/or this agreement, please contact us at support@zebr.co.