CLAUSE 1: DEFINITIONS

In these terms and conditions:

Agreement refers to the agreement between you and Approach Learning, constituted by your acceptance of the Proposal, incorporating these terms and conditions.

Business Day refers to any day other than a Saturday, Sunday, or public holiday in the State or Territory within Australia where the Services or Products are provided.

Claim encompasses any claim, proceedings, suit, action, or demand.

Commencement Date signifies the date for the commencement of the Term as specified in the Proposal, or if none is specified, then the date of your acceptance of the Proposal.

Confidential Information pertains to all information and data concerning the prospects, customers, suppliers, business, dealings, operations, financial position, and affairs of Approach Learning or you, except information and data in the public domain.

Approach Learning refers to Approach Learning Pty Ltd ACN 672 832 914, its successors and assigns, and, where the context allows, any related corporation.

Fee denotes the fee or remuneration for the provision of the Products and Services referred to in the Proposal, as adjusted in accordance with terms and conditions.

GST stands for a tax under A New Tax System (Goods and Services Tax) Act 1999 (Cth) or any other tax similar to goods and services tax.

Insolvency encompasses winding up, dissolution, administration, receivership, provisional liquidation, liquidation, bankruptcy, and any arrangement, including a scheme of arrangement, composition, and compromise with, or assignment for the benefit of, creditors.

Products include the goods or products referred to in the Proposal or such other goods or products as Approach Learning may agree to provide you with from time to time.

Proposal refers to the letter of proposal and accompanying documents prepared by Approach Learning, under which it offers to provide you with Services and/or Products.

Recipient signifies a party receiving a Taxable Supply.

Services entail the services described in the Proposal or such other services as Approach Learning may agree to provide you with from time to time, including fire and emergency response training services, audit services, consultancy services, and casual module training services.

Staff, concerning an entity, refers to that entity’s officers, employees, contractors, and agents.

Supplier signifies a party making a Taxable Supply.

Supply Price represents the price for the supply of Services or a Product as set out in the Proposal, adjusted in accordance with these terms and conditions.

Taxable Supply has the meaning given to that term under A New Tax System (Goods and Services Tax) Act 1999 (Cth).

Term refers to the term of the Agreement between Approach Learning and you, commencing on the Commencement Date and ending on the Termination Date, as extended under clause 5.2.

Termination Date refers to the date that is three (3) years from the Commencement Date, as extended under clause 5.2.

You refers to the company, organization, or person named as “the Client” in the Proposal or the Service Agreement or to whom the Services are to be provided.

Warden denotes a person designated as a member of the Facility Emergency Control Organization, whether or not that person is employed by you.

CLAUSE 2: SERVICES

2.1 For the Term, in consideration of you paying the Fee and the Supply Price, Approach Learning will supply the Services and/or the Products to you on the terms set out in the Proposal.

2.2 In addition to the Fee, you agree to reimburse Approach Learning for any out-of-pocket expenses incurred by it and authorized in advance by you in connection with the provision of the Services or the Products.

2.3 Where the Services comprise fire and emergency response training services, either face-to-face or online, you acknowledge and agree as follows:

  • If you cancel an agreed date, location, or time at which any of the Services are to be provided, including online, you acknowledge that a fee may be incurred for re-booking and site attendance where applicable.
  • Approach Learning reserves the right to forfeit an event if canceled more than once or if all reasonable efforts to schedule the event have been exhausted. In the event of forfeiture, the Fee remains payable, and you are responsible for ensuring compliance in accordance with AS3745-2010, which may include purchasing a replacement event from Approach Learning.
  • Wardens or a member of your Staff who attend a training session or course provided by Approach Learning may not satisfactorily complete a training course or necessarily achieve a standard of competence suitable to you. The successful completion by Wardens or your Staff of a course to a satisfactory standard will depend upon the Warden or your Staff member’s attitude, ability, motivation, and effort.
  • Approach Learning makes no representation or warranty that any particular Warden or member of your Staff who attends a training course will successfully complete that course.

2.4 If during the Term, you cancel or terminate the Services, you acknowledge that you will have to pay the Fee which would have been paid by you for the balance of the Term.

2.5 You warrant that the Services are required for business purposes and not for personal, domestic, or household use or consumption.

2.6 Where additional Products or Services outside the initial Proposal are requested, Approach Learning will provide an additional Proposal for approval before provision. This includes additional administration or reporting associated with the Products or Services included in the initial Proposal (for example, administration associated with vendor supply portal maintenance).

CLAUSE 3: FEES, PRICES, AND PAYMENT

3.1 You agree to pay for the Services and Products supplied by Approach Learning as follows:

  • Where the Services comprise fire and emergency response training services, at the times set out in the Proposal. If no times are specified, the Fee will be divided into four quarterly installments, invoiced quarterly in advance, and is to be paid thirty (30) days from the date of the invoice.
  • For all other Services and Products, at the times set out in the Proposal. If no times are specified, the Fee is to be paid thirty (30) days from the date of the invoice.

3.2 If at any time monies are overdue and owing with respect to any invoice, then:

  • The whole amount of all outstanding invoices will become immediately due and payable.
  • Approach Learning may immediately discontinue the supply of the Services and Products until such time as such monies are paid in full. In no event will Approach Learning be liable for any direct or indirect Claim suffered or incurred by you as a result of such circumstances, including without limitation, failure to perform the Services, failure to perform the Services on the scheduled day or at the scheduled location, or any delay in performing the Services.

3.3 Fees quoted by Approach Learning in a Proposal are valid for a period of 30 days unless otherwise stated in the Proposal.

3.4 If any GST is payable on any Taxable Supply made by the Supplier to the Recipient under or in connection with the Agreement, then the Recipient must pay to the Supplier the amount of such GST in addition to the consideration otherwise payable for the Taxable Supply.

3.5 The Supplier must provide the Recipient with a tax invoice in such form as will permit the Recipient to claim an input tax credit for the amount of such GST should it be so entitled.

3.6 If the Recipient is obliged to reimburse or indemnify the Supplier for any amount paid or payable by the Supplier to a third party (“Third Party Payment”), then:

  • The amount payable by the Recipient will be reduced by the amount of any input tax credit to which the Supplier is entitled in relation to the Third Party Payment.
  • The Recipient will only be obliged to pay any applicable GST on that reduced amount.

3.7 During any fixed term of the Agreement, on each anniversary of the Commencement Date, Approach Learning may, by notice in writing, increase the amount of Fees and other remuneration for the supply of the Services and Products with the fixed amount or rate set out in the Proposal. If no fixed amount or rate is set in the Proposal, then by an amount which is, as a percentage, not more than the increase in the Consumer Price Index (All Groups) for the capital city of the State from which the majority of the Services or Products are managed for the preceding 12 months, such variation to take place from the relevant anniversary of the Commencement Date.

3.8 Notwithstanding clause 3.7, at any time during the Term, Approach Learning may increase the Fees for remuneration for the supply of Services and Products by providing you with thirty (30) days’ notice in writing.

CLAUSE 4: TERMS OF AGREEMENT

4.1 Subject to clause 4.2, the Agreement commences on the Commencement Date and will continue until the Termination Date or until terminated earlier in accordance with the provisions of these terms and conditions, whichever occurs first.

4.2 Notwithstanding the Term, the parties agree that Approach Learning will continue to provide the Services and/or the Products after the Termination Date, on the basis of a series of rolling twelve (12) month terms. Unless a party gives to the other a notice at least sixty (60) days before the Termination Date indicating that the party giving the notice does not wish the Services to continue past the Termination Date, the parties agree to extend the Term for a further period of twelve (12) months. In that event, the Term will include the additional twelve-month period, and the Termination Date will be the end of the Term as extended by the further terms of twelve months.

CLAUSE 5: WARRANTY BY APPROACH LEARNING & LIMITATION OF LIABILITY

5.1 Approach Learning warrants that its Staff will at all times be suitably skilled and qualified to provide the Services.

5.2 To the full extent permitted by law, Approach Learning makes no other warranties in relation to the supply of the Services or the Products and, subject to clause 5.5, excludes any warranties or conditions that would otherwise be implied under the Trade Practices Act 1974 (Cth) or other statute or at general law, including those as to merchantability, description, quality, suitability, or fitness for any purpose or otherwise.

5.3 If any warranty or condition cannot be excluded, restricted, or modified, then to the full extent permitted by law, Approach Learning limits its liability in connection with the supply of the Services and Products (however arising, whether in contract, tort, or otherwise) at its option to one of the following:

  • In the case of the supply of Services:
    • supplying the relevant Services again; or
    • the payment of the cost of having the relevant Services supplied again;
  • In the case of the supply of the Products:
    • replacement of the relevant Products or the supply of equivalent Products;
    • the repair of the relevant Products;
    • the payment of the cost of replacing the relevant Products or acquiring equivalent Products; or
    • the payment of having the relevant Products repaired.

5.4 To the full extent permitted by law, Approach Learning will not be liable for any special, indirect, or consequential loss, damage, or injury suffered or incurred by you in connection with the supply of or any failure to supply the Services or the Products.

5.5 Nothing in these terms and conditions will exclude, restrict, or modify any rights or remedies which you may have under the Competition and Consumer Act 2010 (Cth) or other legislation which under such laws cannot be excluded, restricted, or modified by agreement.

CLAUSE 6: CONFIDENTIALITY

6.1 All Confidential Information of a party (the “Disclosing Party”) that may come into the possession of the other party (the “Receiving Party”) during the Term is and remains the property of the Disclosing Party.

6.2 The Receiving Party must not at any time without the consent of the Disclosing Party, copy or take extracts of Confidential Information or remove any Confidential Information from either party’s premises except in the performance of its obligations under the Agreement. In the case of removal of any Confidential Information, the Receiving Party must as promptly as possible and in any case immediately return it to the Disclosing Party.

6.3 The Receiving Party must not either before or after the termination of the Agreement disclose to any person (other than the persons from time to time authorized by the Disclosing Party) any Confidential Information of which the Receiving Party may become possessed and the Receiving Party must not make use of any such Confidential Information:

  • to gain directly or indirectly any improper advantage to itself or to any other person;
  • to itself provide services which are similar to the Services; or
  • to injure or cause loss either intentionally or unintentionally directly or indirectly to the Disclosing Party.

6.4 You grant Approach Learning permission to name you as a client of Approach Learning in tendering for work from third parties

CLAUSE 7: YOUR OBLIGATIONS

7.1 In consideration of Approach Learning providing the Services and/or the Products, you will pay the Fee to Approach Learning at the times required under these terms and conditions.

7.2 You will make available all relevant information regarding or relevant to the nature of the particular Services required to be provided and the location of the premises where those Services will be performed at least five Business Days prior to the proposed date of commencement of the provision of those Services.

7.3 You will provide all assistance reasonably required by Approach Learning in a timely manner so that Approach Learning may perform the Services and supply the Products. Without limitation, you will use your best endeavors to ensure Wardens and/or your Staff are ready and available at the agreed times for the Services to be provided to them, and that all equipment is fully installed and able to be viewed at the agreed time of service.

7.4 You will ensure that at every premises where Approach Learning is required to provide Services or supply the Products that there is a current policy of insurance covering public liability for not less than $20 million for each claim.

CLAUSE 8: RELEASE AND INDEMNITY

8.1 You release Approach Learning from any Claim arising out of any act or omission of your Staff.

8.2 You release Approach Learning from any Claim arising out of any act or omission of Approach Learning or its Staff (unless any such act is negligent or deliberate) in connection with the delivery of the Services.

8.3 You indemnify and will keep Approach Learning indemnified from and against any Claim arising out of any act or omission of any Warden of your Staff to whom you request that Approach Learning provide the Services.

CLAUSE 9: FORCE MAJEURE

9.1 A party will not be liable for any delay or failure to perform its obligations under the Agreement if such delay is due to any cause beyond the reasonable control of the party.

9.2 As soon as a party becomes aware that the performance of its obligations may be affected by a cause beyond its reasonable control, it will give the other party notice of the circumstances, the anticipated delay, and any conduct that it can take to mitigate the effect of the circumstances.

9.3 If a delay or failure of a party to perform its obligations is due to a cause beyond its reasonable control, the performance of that party’s obligations will be suspended.

9.4 If a delay or failure by a party to perform its obligations due to a cause beyond its reasonable control exceeds 60 days from the date that the obligation was required to be performed, either party may immediately terminate the Agreement on providing written notice to the other party.

9.5 Without limiting any other provision of this clause 9, you acknowledge that in certain circumstances Approach Learning’s Staff may not be available at the scheduled time and location at which the Services are to be performed due to sickness, accident, or other misfortune or incapacity of that individual or interruption or failure of transportation to that scheduled location. In such circumstances Approach Learning will use reasonable endeavors to supply replacement Staff or carry out such other remedial action it considers appropriate in order to be able to perform the Services at the scheduled location as quickly as possible. You acknowledge, however, that it may not be possible for Approach Learning to source replacement Staff at short notice or on the particular scheduled day in question. In no event will Approach Learning be liable for any direct or indirect Claim suffered or incurred by you as a result of such circumstances including without limitation, failure to perform the Services, failure to perform the Services on the scheduled day or at the scheduled location or for any delay in performing the Services.

CLAUSE 10: APPOINTMENT AS SOLE PROVIDER

10.1 During the Term:

you agree to exclusively refer all of your requirements for services and goods the same as, or similar to the Services and Products referred to in the Proposal to Approach Learning; and in so doing you agree not to engage any other person or entity to supply services and goods the same as or similar to the Services and Products specified in the Proposal.

CLAUSE 11: INTELLECTUAL PROPERTY RIGHTS

11.1 All copyright and other intellectual property rights in any software, designs, inventions, manuals, procedures, policies or creative works (Intellectual Property Rights) owned by Approach Learning at the Commencement Date remain the property of Approach Learning at all times.

11.2 Any Intellectual Property Rights developed by Approach Learning during the Term in connection with the performance of the Services or otherwise in connection with the performance of Approach Learning obligations under the Agreement will vest in Approach Learning immediately upon its creation. You agree at the request of Approach Learning to execute any assignment or other document reasonably requested by Approach Learning for the purpose of vesting in Approach Learning such Intellectual Property Rights.

11.3 Approach Learning grants to you a non-exclusive license to use the Intellectual Property Rights referred to in clauses 11.1 and 11.2 during the Term for the limited purpose of participating in the Services and promoting the Services to Wardens and your Staff.

CLAUSE 12: RETURN OF FACILITIES

12.1 You must deliver to Approach Learning immediately upon request and on termination of the Agreement, all facilities, equipment, notes, and other records relating to the business or affairs of Approach Learning which Approach Learning may provide to you for the purposes of the Agreement of which you may acquire during the course of the Agreement.

CLAUSE 13: TERMINATION

13.1 Either party may terminate the Agreement at any time by giving the other party at least thirty (30) days notice in writing to the other party in the event that the other party has breached a provision of the Agreement and has failed to rectify such a breach after the non-defaulting party has first given fourteen (14) days written notice requiring such breach to be rectified.

13.2 Notwithstanding clause 13.1, Approach Learning may terminate the Agreement by giving you thirty (30) days notice in writing in the event that:

a) you infringe any of Approach Learning’s intellectual property rights; b) you enter into any form of Insolvency.

13.3 If Approach Learning terminates the Agreement as a consequence of your breach, then you must pay to Approach Learning:

any part of the Fee which is then due and payable to Approach Learning; and the Fee which would have been paid by you for the balance of the Term.

13.4 Any monies payable to Approach Learning under clause 13.3 and which remain unpaid for thirty (30) days shall be a debt due and payable by you to Approach Learning.

CLAUSE 14: GENERAL

14.1 (Further Assurances) Each party to this Agreement shall undertake all reasonable steps and actions as requested by any other party to facilitate the completion of any transactions outlined within this Agreement.

14.2 (Waiver) No waiver of any breach of this Agreement shall be valid unless it is provided in writing and signed by the party against whom the waiver is claimed. Furthermore, no waiver of any breach shall be considered a waiver of any other or subsequent breach.

14.3 (Governing Law) This Agreement shall be governed by and construed in accordance with the laws of the jurisdiction in which the Services or Products are delivered. The parties hereby submit to the non-exclusive jurisdiction of the courts of that jurisdiction.

14.4 (Severance) Any provision of this Agreement that is found to be unlawful or unenforceable in any jurisdiction shall be severed from this Agreement in that jurisdiction, without affecting the validity or enforceability of the remaining provisions in that jurisdiction or in any other jurisdiction.

14.5 (Successors) This Agreement shall be binding upon and inure to the benefit of the parties and their respective legal representatives, successors, and permitted assigns.

14.6 (Variation) The terms of this Agreement may only be amended in writing and signed by all parties. However, Approach Learning reserves the right to amend these Terms and Conditions by publishing an updated version on the Approach Learning website. Your continued use of the Services following notification of any changes shall constitute acceptance of those changes and variation of the terms of this Agreement.

14.7 (Entire Agreement) This Agreement constitutes the entire agreement between the parties concerning its subject matter, superseding and replacing any prior arrangements, agreements, representations, or undertakings.

14.8 (Relationship) The relationship between the parties is that of independent contractors. Nothing in this Agreement shall be construed to create an employer-employee, principal-agent, partnership, or joint venture relationship between the parties.

14.9 (Assignment) You shall not assign or transfer any right or obligation under this Agreement without the prior written consent of Approach Learning.

14.10 (Trust) If you enter into this Agreement as a trustee, you acknowledge that this Agreement binds you personally and in your capacity as trustee. You further affirm that you enter into this Agreement for the proper purpose of the trust, with the requisite power and authority, and that you have the right to be fully indemnified by the beneficiaries and from the trust property for all liabilities incurred under this Agreement.

CLAUSE 15: PRIVACY POLICY

15.1 Privacy Policy Overview: Approach Learning respects your privacy and is committed to protecting your personal information. This Privacy Policy explains how Approach Learning collects, uses, and protects the personal information you provide in connection with the Services and Products.

15.2 Collection of Personal Information: Approach Learning may collect personal information from you, including but not limited to your name, contact information, payment details, and any other information necessary for the provision of Services and Products.

15.3 Use of Personal Information: Approach Learning may use your personal information for the purpose of providing the Services and Products, billing, identification, and authentication, improving our services, and communicating with you.

15.4 Disclosure of Personal Information: Approach Learning may disclose your personal information to third-party service providers or contractors who assist in the provision of Services and Products. Approach Learning will not disclose your personal information to third parties for marketing purposes without your consent.

15.5 Data Security: Approach Learning takes reasonable measures to protect your personal information from unauthorized access, use, or disclosure. However, no method of transmission over the internet or electronic storage is 100% secure, and therefore, Approach Learning cannot guarantee absolute security.

15.6 Access to and Control Over Personal Information: You have the right to access, correct, or delete your personal information held by Approach Learning. You may also opt-out of receiving communications from Approach Learning.

15.7 Retention of Personal Information: Approach Learning will retain your personal information for as long as necessary to fulfill the purposes outlined in this Privacy Policy unless a longer retention period is required or permitted by law.

15.8 Updates to Privacy Policy: Approach Learning may update this Privacy Policy from time to time. Any changes will be effective immediately upon posting the revised Privacy Policy on the Approach Learning website. Your continued use of the Services and Products after the posting of the updated Privacy Policy constitutes your acceptance of the changes.

CLAUSE 16: DISPUTE RESOLUTION

16.1 If a dispute arises in connection with the Agreement which cannot be settled by the parties within 14 days, the parties must endeavour to settle the dispute by mediation held in Brisbane (or in such other place as may be agreed by the parties by the parties in writing) before having recourse to litigation.

16.2 The parties must use their best endeavours to agree on a mediator but failing agreement either party may request the President of the Queensland Law Society to appoint a mediator and the mediator will be appointed on the terms specified by that organisation. The parties will bear equally the costs of any mediator appointed.

16.3 The parties agree that the mediator may conduct proceedings under this clause 15 in such manner as the mediator considers is fit including, if appropriate, the adoption of all or part of the Guidelines for Commercial Mediation of the Australian Commercial Disputes Centre. During the course of the mediation, each party must be represented by a person having authority to agree to resolution of the dispute.

16.4 If the dispute has not been settled within 28 days (or such other period as the parties may agree in writing) after the appointment of the mediator, the dispute may be submitted to a dispute resolution procedure specifically agreed to be the parties or, if not, to litigation.

16.5 Nothing in this clause 15 will prevent a party from seeking urgent interlocutory relief before an appropriate court.

CLAUSE 17: NOTICES

17.1 Any notice to or by a party:

a) must be in writing addressed to the other party and signed by or on behalf of the party giving the notice; and

b) is regarded as given by the sender and received by the addressee:

I. if by delivered in person, when delivered to the addressee,

II. if delivered by post, two Business Days after the date the notice is posted,

III. if delivered by facsimile, upon the sender receiving a transmission report from the sender’s facsimile machine indicating that the facsimile has been successfully transmitted in full, and

IV. if by email

a) upon receiving an acknowledgment from the recipient party; or

b) (except where the sender is put on notice that the email may not have been successfully sent) upon the return receipt being delivered by the automated email system to the sender, but the delivery or receipt is on a day which is not a Business Day or is after 4.00pm (addressee’s time) it is deemed to be given on the succeeding Business Day.

CLAUSE 18: INTERPRETATION

18.1 In these terms and conditions unless the context otherwise requires:

a) words importing the singular include the plural and vice versa;

b) words denoting a gender include all genders;

c) headings shall be ignored in construing these terms and conditions;

d) references to persons include references to corporations and other bodies and entities;

e) references to statutes include all statutes amending, consolidating or replacing such statutes; and

f) a reference to “$” or “dollars” is a reference to the lawful currency of the Commonwealth of Australia.