FIRST 1000 DAYS AUSTRALIA

ONLINE COURSE TERMS OF AGREEMENT

WEYARN PTY LTD
Trading as "First 1000 Days Australia" ABN 78 628 151 002
(“First 1000 Days Australia”)

And 

PARTICIPANT
as identified in Item 2 in the Schedule
(“Participant”)

This Agreement is made on the Commencement Date.

Between:
WEYARN PTY LTD
Trading as "First 1000 Days Australia" ABN 78 628 151 002
(“First 1000 Days Australia”)
And
PARTICIPANT
as identified in Item 2 in the Schedule
(“Participant”)

WHEREAS 

A.                  First 1000 Days Australia focuses on empowering others with the skills and know-how to provide services and programs that align with our philosophy through training.

B.                  The First 1000 Days Australia Partners online courses benefit those working with Aboriginal and Torres Strait Islander people.  The course consists of a number of modules and the course is made available to the participant in accordance with the terms and condition set out in this Agreement.  

C.                  The Parties have entered into this Agreement to give effect to their common intentions.

OPERATIVE PROVISIONS

1.            Definitions and Interpretations

Definitions

In this Agreement the following expressions will, unless the context otherwise requires, have the following meanings:

Agreement means this Agreement between First 1000 Days Australia and the Participant.

Commencement Date means the date that this Agreement commences and is the date that the Course Fee is paid by the Participant.

Course means the course, videos, materials, online information and content which is provided by First 1000 Days Australia on the Website pursuant to this Agreement. 

Course Fee means the amount of the course fee as specified in the Schedule plus all applicable taxes.

Course Title means the title of the Course as set out in the Schedule.

Course Discount means the amount of the discount as set out in the Schedule.

First 1000 Days Australia means Weyarn Pty Ltd trading as "First 1000 Days Australia" ABN 78 628 151 002.

Intellectual Property means all intellectual property rights wherever in the world, whether registrable or unregistrable, includes the Course, registered or unregistered, including any application or right of application for such rights and these "intellectual property rights" include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trademarks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, course videos, semi-conductor topography rights and rights in designs and it includes the Course.

Licence means the licence to use the Intellectual Property granted to the Participant in accordance with the terms of this Agreement.

Number of Modules means the number of modules as set out in the Schedule.

Party means a party to this Agreement and Parties means all parties to this Agreement and such expressions include their respective legal representatives.

Participant means that person, natural person or body corporate, as set out and identified in the Schedule.

Participant Data means all data provided to First 1000 Days Australia by the Participant and includes, but is not limited to, Personal Data of the Participant.

Personal Data means the same meaning given to it in the Data Protection legislation applicable in Australia from time to time and includes the data of the participant.  

Purpose means the specified use of the Course as a participant on the Website.

Schedule means the schedule of this Agreement.

Term means the term of this Agreement as specified in the Schedule.

Termination Date means date specified in the Schedule.

Territory means Australia and the World or as otherwise determined by First 1000 Days Australia in writing.

Website means the website owned and operated by First 1000 Days Australia domain https://www.first1000daysaustralia.com/.

1.2          In this Agreement unless the contrary intention appears:

a)         a reference to this document means this Agreement and includes any variation or replacement of it as approved by the Licensor;

b)        a reference to a statute or other law includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements or any of them;

c)         singular includes the plural number and vice versa;

d)        all headings in this document have been inserted for the purpose of ease of reference only.  They do not affect the meaning or interpretation of it; and

e)        This Agreement should be interpreted:

(i)         in accordance with its spirit, intention and purpose;

(ii)       by looking beyond form to substance; and

(iii)     the Licence is non exclusive and granted only to the extent as specified (or varied) from time; and

f)             the Schedule forms a part of this Agreement.

1.                               Term

1.1               This Agreement shall come into force upon the Commencement Date.

1.2               This Agreement shall continue in force until the Termination Date upon which this Agreement shall terminate automatically unless otherwise required in writing by First 1000 Days Australia.

2.            The Course

2.1          In consideration of the Participant paying the Course Fee, in accordance with this Agreement,  First 1000 Days Australia grants to the Participant, and the Participant accepts, a non-exclusive and non-transferable licence for the Term of the Agreement to access or participate in the Course solely for the Purpose within the Territory and on the terms and conditions of the Agreement for the Term.

2.2          The Participant agrees that the Course shall consist of the Course Modules as set out in this Agreement, unless notified in writing by First 1000 Days Australia.

2.3          The Participant cannot assign or sub-licence the rights under this Agreement without prior written approval from First 1000 Days Australia.

2.4          The Participant will not modify or alter the Course or merge all or any part of the Course with any other software without First 1000 Days Australia’s express written permission.

2.5          The Participant agrees and acknowledges that First 1000 Days Australia may perform Maintenance Services and this might interfere with the Participant’s rights to use the Course.  In addition First 1000 Days Australia’s rights to perform Maintenance Services may interfere with information on the Course and the Participant has no rights against First 1000 Days Australia in regards to loss or interference suffered.

2.6          The Participant must not reverse assemble, reverse compile or reverse engineer or either directly or indirectly allow or cause a third party to reverse assemble, reverse compile or reverse engineer the whole or any part of the Course.

2.7          The Participant must not reverse assemble, reverse compile or reverse engineer or either directly or indirectly allow or cause a third party to reverse assemble, reverse compile or reverse engineer the whole or any part of the Intellectual Property.

2.8          The Participant may continue to access the Course online on the Website as long as:

(a)       the Course remains active on the Website;

(b)      the Course is not currently being reviewed or improved by First 1000 Days Australia;

(c)       the  Participant has paid the Course Fee in Full;

(d)      the  Participant has complied with all of the terms and conditions of this Agreement; and

(e)       provided that First 1000 Days Australia has not otherwise made the Course unavailable to the Participant.

2.9              The Parties agree that all Courses videos will be available via the Website portal in full for a period of 3 months from the date of the Commencement Date, unless the period is varied in writing by First 1000 Days Australia.

2.10           The Parties agree that the Participant must at all times comply with all reasonably directions of First 1000 Days Australia in connection with the Participant’s conduct in connection with the Course and the Participant must comply with each obligation set out by the First 1000 Days Australia code of conduct during trainings.

3.            Course Fee

3.1          The Participant must pay the Course Fee to First 1000 Days Australia, minus any Course Discount as allowed and agreed to by First 1000 Days Australia, as consideration for the Participants attendance or involvement in connection with the Course.

3.2          The Parties agree that the Participant must pay the Course Fee to First 1000 Days Australia as a single lump sum payment for that total amount of the Course Fee.  The Participant may pay the total Course Fee in instalments if expressly agreed to by First 1000 Days Australia in writing.  

3.3          First 1000 Days Australia may increase the Course Fee at any time in accordance with changes in their applicable standard rates on the provision of fourteen (14) days written notice of the intention to do so.

3.4          First 1000 Days Australia may provide the Participant with a valid GST tax invoice.  To the extent the Course Fees excludes GST, the Participant must pay all amounts of taxable supplies under the Agreement.

3.5          The Participant must pay the Course Fees electronically in cleared funds without any set off or deduction except to the extent required by law or as otherwise lawfully required and accepted by First 1000 Days Australia.

3.6       First 1000 Days Australia may charge interest on overdue amounts. Interest will be calculated from the due date to the date of payment (both inclusive) at an annual percentage rate equal to the corporate overdraft reference rate (monthly charging cycle) applied by the First 1000 Days Australia ’s primary trading bank as at the due date (or if the First 1000 Days Australia ’s primary trading bank ceases to quote such a rate, then the rate which in the opinion of the bank is equivalent to that rate in respect of similar overdraft accommodation expressed as a percentage) plus 2% per annum.

4.            Participant Data

4.1          To the extent permissible at law the Participant hereby grants to First 1000 Days Australia a non-exclusive licence to copy, reproduce, store, distribute, publish, export, adapt, edit and translate the Participant Data to the extent reasonably required for the performance of First 1000 Days Australia's obligations and the exercise of First 1000 Days Australia's rights under this Agreement.

4.2          The Participant warrants to First 1000 Days Australia that the Participant Data including when used by First 1000 Days Australia in accordance with this Agreement will not infringe the Intellectual Property Rights or other legal rights of any person under all applicable laws.

5.            Intellectual Property

5.1          First 1000 Days Australia own and shall retain ownership of the Intellectual Property rights in and to the Course. This Agreement does not purport to transfer any right to the Intellectual Property in the Course to the Participant and/or any third party.   

5.2          Nothing in this Agreement shall operate to assign or transfer any Intellectual Property Rights from First 1000 Days Australia to the Participant.  In addition, the Participant must not do anything other than as expressly allowed by First 1000 Days Australia in connection with the Intellectual Property and the Participant must not record any of the Intellectual Property.

5.3          The Participant will indemnify First 1000 Days Australia against any loss, costs, expenses, demands, or liability, whether direct or indirect, arising out of a claim by a third party alleging an infringement if the claim arises from any breach of this Agreement.

6.                   Confidential Information

6.1              The Participant will treat as confidential, all information, the Intellectual Property, the Course, videos, documentation, codes, and details of suppliers  or third parties of First 1000 Days Australia and any other information passed on to the Participant in connection with the Course and the Website.

7.                   GST, Levies and Charges

7.1              The Course Fee payable pursuant to this Agreement is exclusive of any duties, fees or other government levies or charges which may be imposed on or in respect of the Course, its use or its maintenance whether under this Agreement or otherwise.

7.2              The Participant is liable for the payment of any duties, fees or other government levies or charges by the due date nominated by First 1000 Days Australia by notice in writing.

7.3              Expressions used in this clause have the same meaning as those expressions in that legislation known as A New Tax System (Goods and Services Tax) Act 1999 (Commonwealth).  Without prejudice to First 1000 Days Australia, if First 1000 Days Australia makes a Taxable Supply in connection with this Agreement, then the Participant must pay to the First 1000 Days Australia the amount of the GST payable in respect of the Taxable Supply.

7.4              The Participant agrees to fully indemnify First 1000 Days Australia for any payments made by First 1000 Days Australia which are the Participants responsibility under this Agreement.

8.                   Warranties

8.1              Each party warrants that it has full power and authority to enter into and perform its obligations under the Agreement which, when signed, will constitute binding obligations on the warranting party.

8.2              The Participant warrants to First 1000 Days Australia that to the best of its knowledge, the use of the Course by the Participant in accordance with the Agreement will not infringe the Intellectual Property Rights of any other person.

8.3              The Participant warrants to First 1000 Days Australia that that it has not relied on any representation made by First 1000 Days Australia which has not been stated expressly in this Agreement or on any descriptions or illustrations or specifications contained in any document including any catalogues or publicity material produced by First 1000 Days Australia.

9.                   Limitation of liability and Release

9.1              First 1000 Days Australia is not be liable for any loss or damage of any kind caused by use of the Course or however caused, suffered by the Participant or any third party whether the claim be in contract (including failure to abide by the terms of this contract) or for negligence or equity.

9.2              To the maximum extent permitted by law, First 1000 Days Australia and its officers, employees, agents, consultants, licensors, partners and affiliates exclude all liability to the Participant or any other person for any loss, cost, expense, claim or damage (whether arising in contract, negligence, tort, equity, statute or otherwise, and for any loss, whether it be consequential, indirect, incidental, special, punitive, exemplary or otherwise, including any loss of profits, loss or corruption of data or loss of goodwill) arising directly or indirectly out of, or in connection with, this Agreement and/or the Website.

9.3              The Participant indemnifies and hold harmless First 1000 Days Australia and its officers, employees, agents, consultants, licensors, partners and affiliates from and against any losses, liabilities, costs, expenses or damages (including actual, special, indirect and consequential losses or damages of every kind and nature, including all legal fees on a solicitor-client basis) suffered or incurred by any of them due to, arising out of, or in any way related to (directly or indirectly):

(a)       any material or information that is submit, posted, transmitted or otherwise made available through the Website;

(b)      the Participant’s use of, or connection to the Website and the Course; and/or

(c)       the Participant’s negligence or misconduct, breach of this Agreement or violation of any law or the rights of any person.

9.4              Our goods and services come with guarantees that cannot be excluded under the Australian Consumer Law. For major failures with the service, you are entitled:

(a)       to cancel your service contract with us; and

(b)      to a refund for the unused portion, or to compensation for its reduced value.

​You are also entitled to choose a refund or replacement for major failures with goods. If a failure with the goods or a service does not amount to a major failure, you are entitled to have the failure rectified in a reasonable time. If this is not done you are entitled to a refund for the goods and to cancel the contract for the service and obtain a refund of any unused portion. You are also entitled to be compensated for any other reasonably foreseeable loss or damage from a failure in the goods or service.

10.               Termination

10.1           Without limiting the generality of any other clause in this Agreement, First 1000 Days Australia may terminate this Agreement immediately by notice in writing if:

(a)       the Participant has any outstanding payments due to First 1000 Days Australia for more than fourteen (14) days;

(b)      the Participant breaches any clause in this Agreement and that breach is not remedied within fourteen (14) days of written notice to so by First 1000 Days Australia;

(c)       the Participant disposes or misuses the Course; or

(d)      or the Participant breaches an obligation of this Agreement.

10.2      If the Participant breaches this Agreement in addition to terminating the Agreement, First 1000 Days Australia may:

(a)       repossess any copies of the Course in the possession, custody or control of the Participant;

(b)      retain any money paid;

(c)       cancel the License in all ways without limitation;

(d)      charge a reasonable sum for the work performed in respect of which work no sum has been previously charged;

(e)       be regarded as discharged from any further obligations under this Agreement; and/or

(f)        pursue any additional or alternative remedies provided by law.

11.               Notices

Every notice under this Agreement must be in writing and must be served to the Party by the last known email address or by registered post to the parties registered office address.

12.               Mediation

Any dispute, difference or question which may arise at any time between the Parties with respect to the true construction of this Agreement or the rights and liabilities of the Parties or any inability to reach agreement on any operational aspect of this Agreement will unless otherwise provided be referred to mediation by a mediator mutually agreed to by the Parties.  

13.               Amendment

No amendment to this Agreement will be valid unless in writing and signed by both Parties in the same manner as that in which this Agreement has been executed.

14.               Waiver

Any failure or omission by 1000 Days Australia to enforce a provision of this Agreement will in no way be deemed a waiver of 1000 Days Australia’s right to enforce that provision or any other provision of this Agreement.

15.               Entire Agreement

This Agreement, and any notice(s) given by the Parties in accordance with this Agreement, contains the entire agreement between the Parties in respect of the subject matter of this Agreement and supersedes all prior understandings and representations between the Parties with respect to the subject matter of this Agreement.

16.               Severability

If any covenant, undertaking or condition of this Agreement is found to be void or unenforceable at law, that covenant, undertaking or condition will not affect any other Term of this Agreement and, as far as it is possible, will read down to the extent required to make it enforceable.  If necessary, the Parties will, in good faith, negotiate a valid and enforceable replacement term to express their intention.

17.               Governing Law

The contents of this Agreement, its meaning, interpretation and the relationship of the Parties are to be governed by the current and valid laws of Victoria.  The Parties irrevocably submit to the jurisdiction of the courts in Victoria.

18.               Non- Assignment

The Participant must not transfer or assign any of its liabilities or rights under this Agreement to any third-party unless expressly agreed by written notice from 1000 Days Australia.

19.               Counterparts

This Agreement may be signed in several counterparts, each of which will be considered an original but all of which together will constitute one and the same Agreement.  This Agreement may be executed and/or signed in electronic counterparts and exchanged electronically.

Contact details

First 1000 Days Australia

E: info@first1000daysaustralia.com
W: https://www.first1000daysaustralia.com/
P: Toll Free: 1800 We Yarn (1800 939 276)