3.  Definitions & interpretation

3.1         Definitions

In this Agreement, unless the context or subject matter require otherwise:

Account means the user name and access credentials linked to an account authorised by the Subscriber that allows its End Users to access and use the WorkPlan Learning Platform.

Agreement means the terms and conditions contained in this Terms of Service including any schedules or annexures or documents incorporated by reference.

Business Day means:

(a)          for receiving a Notice, means a day that is not a Saturday, Sunday, public holiday or bank holiday in the place where the Notice is received; and

(b)          for all other purposes, a day that is not a Saturday, Sunday, bank holiday or public holiday in  Queensland, Australia.

Cancellation Notice means the notice the Subscriber must send to WorkPlan’s email address: contact@workplan.com.au advising they wish to cancel their Subscription.

Cancellation Period means no less than 60 days before the end of the Term.
Content means Data, music, speech or other sounds, text, visual images (animated or otherwise) in any form, or in any combination of forms as defined in Schedule 7 of Broadcasting Services Act 1992 (Cth), including but not limited to, data files, graphics images, messages, photographs, sounds, videos, written text and any other like materials.

Change of Control means in relation to the Subscriber, the person who Controls the Subscriber, at the Commencement Date who subsequently ceases to have Control during the Term.

Confidential Information includes;

• the WorkPlan Learning Platform;
• any and all information disclosed by one Party (Disclosing Party) to the other Party (Receiving Party) in whatever format, that is either identified as or would reasonably be understood to be confidential and/or proprietary by the Receiving Party;
• any notes, extracts, analyses or materials prepared by the Receiving Party that are copies of or derivative works of Confidential Information or from which Confidential Information can be inferred or otherwise understood; and
• the terms and conditions of this Agreement.

Confidential Information does not include information that:

• becomes generally available to the public other than as a result of disclosure by the Receiving Party or as the result of disclosure prohibited by this Agreement;
• was available on a non-confidential basis prior to its disclosure; or
• becomes available on a non-confidential basis from a source other than the Receiving Party, provided that such source is not contractually obliged to keep such information confidenti

Control takes its meaning from section 50AA of the Act.

Commencement Date means the date calculated in accordance with Item 1 of clause 2.

Data means any information including Content which the Subscriber authorises its End Users to input, upload, view and use with the WorkPlan Learning Platform.

Dependent Software means any software which an End User must have installed in order for the Subscriber to operate effectively as shown at clause 4.4 if required.

Documentation means any user manual, support, guides and explanatory notes or memoranda provided in either electronic or physical form by WorkPlan that may or may not be supplied with the WorkPlan Learning Platform as updated from time to time.

End User means a person authorised by the Subscriber to access and use the WorkPlan Learning Platform.

Fee means the price in Item 2 of clause 2 the Subscriber agrees to pay to access and use the WorkPlan Learning Platform for the Term.

Force Majeure means an act of God, fire, lightning, explosions, flood or other natural disaster, subsidence, act of terrorism, insurrection, civil disorder or military operations, power or gas shortage, government or quasi-government restraint, expropriation, prohibition, intervention, direction or embargo, inability or delay in obtaining governmental or quasi-governmental approvals, consents, permits, licences or authorities, strikes, lock-outs or other industrial disputes of any kind and any other cause, whether similar or not to the foregoing, outside of the affected Party’s control.

GST has the meaning given by section 195-1 of the A New Tax System (Goods and Services Tax) Act 1999.

Insolvency Event means circumstances in which a Party takes any corporate action or any steps are taken or legal proceedings are started for:

(a)          its winding-up, dissolution, or liquidation;

(b)          the appointment of a controller, receiver, administrator, official manager, trustee or similar officer of it; or

(c)          seeking or being granted protection from its creditors, under any applicable legislation.

Intellectual Property means all industrial and intellectual property rights including, without limitation, patents, copyrights, right to extract information from databases, design rights, trade secrets, rights of confidence, and all forms of protection of a similar nature or having similar effect to any of them which may subsist anywhere in the world (whether or not any of them are registered and including applications and the right to make applications for registration of any of them).

Term means in the context of a Subscription, the period described in Item 3 of clause 2 which the Subscriber obtains the right to access the WorkPlan Learning Platform for the number of End Users selected.

Third Party Content means Content provided by a third party that is included in the WorkPlan Learning Platform for Subscribers and their End Users to use.

Subscription means the Subscriber’s authorised access to the WorkPlan Learning Platform for the Term.

User Generated Content means Content uploaded to the WorkPlan Learning Platform by the Subscriber and its End Users as the case and context requires.

Update means any modifications, new or revised versions of the WorkPlan Learning Platform that are required for it to operate more efficiently as determined by WorkPlan at its sole and unfettered discretion.

Website means the website located at the URL: www.workplan.com.au

WorkPlan Learning Platform means the software which WorkPlan makes available to the Subscriber to access and use which is available at www.workplanlearning.com.au pursuant to the terms and conditions of this Agreement.

3.2         Interpretation

In this Agreement:

(a)          a reference to:

(i)            one (1) gender includes the others;

(ii)          the singular includes the plural and the plural includes the singular;

(iii)         a person includes a body corporate;

(iv)         a document or instrument includes the document or instrumented as novated, altered, supplemented or replaced from time to time;

(v)          a Party includes the Party’s executors, administrators, successors and permitted assigns;

(vi)         a statute, regulation or provision of a statute or regulation (Statutory Provision) includes:

1. that Statutory Provision as amended or re-enacted from time to time; and
2. a statute, regulation or provision enacted in replacement of that Statutory Provision;

• an amount of money is an amount in Australian dollars ($AUD);
• time is to Australian Eastern Standard Time ; and
• a schedule refers to a schedule contained in this Agreement;

(b)          including and similar expressions are not words of limitation;

(c)          where a word or expression is given a particular meaning, other parts of speech and grammatical forms of that word or expression have a corresponding meaning;

(d)          headings and the table of contents are for convenience only and do not form part of this Agreement or affect its interpretation;

(e)          where a day on or by which an obligation must be performed or an event must occur is not a Business Day, the obligation must be performed or the event must occur on or by the next Business Day; and

(f)            a provision of this Agreement must not be construed to the disadvantage of a Party merely because that Party was responsible for its preparation or the inclusion of the provision in it.

4.  Grant of rights to access the WorkPlan Learning Platform

4.1        Conditions precedent

The terms and conditions in this Agreement commence after the Subscriber pays the agreed Fee as shown at Item 2 of clause 2 for the Term.

4.2         Commencement

(a)          The terms and conditions contained in this Agreement commence on the later of the satisfaction of the Conditions Precedent or the date specified at Item 1 of clause 2.

(b)          Continue for the Term unless terminated according to the terms and conditions contained herein and subject to clause 4.8.

4.3         Rights granted

WorkPlan grants the Subscriber and its End Users a non-transferrable and limited right to access and use the WorkPlan Learning Platform on the terms and conditions contained in Agreement during the Term.

4.4         Minimum system requirements

In order for the WorkPlan Learning Platform to function the Subscriber’s End User(s) must use:

(a)          a modern web browser including Windows Edge, Google Chrome, Mozilla Firefox, Apple Safari or as advised by WorkPlan from time to time throughout the Term; and

(b)          a modern smart phone device or tablet with a recently released operating system when accessing through the mobile application.

4.5         Use of the WorkPlan Learning Platform

(a)          The Subscriber agrees:

(i)            to authorise its End Users to use the WorkPlan Learning Platform only for the purposes of its own business and in accordance with any Documentation provided by WorkPlan.

(ii)          to use the Documentation only for the purpose for which it is provided; and

(iii)         otherwise comply in all respects with its obligations contained in this Agreement.

4.6         Payment

(a)          The Subscriber agrees to pay the Fee shown at Item 2 of clause 2 in exchange for its End Users use of the WorkPlan Learning Platform during the Term.

(b)          The Subscriber must pay the Fee as it applies to the number of End Users in the manner as reasonably directed by WorkPlan. The Subscriber must notify WorkPlan of any increase in the number of End Users within [3] days of such increase taking place.

(c)          For the avoidance of doubt, the Fee is payable for each End User using the WorkPlan Learning Platform and the Subscriber agrees to pay the amount of the Fee for each additional End User using the WorkPlan Learning Platform during the Term of this Agreement.

(d)          Except where it is expressly stated otherwise, the Fee payable by the Subscriber under this Agreement is expressed as a GST exclusive amount. The GST amount must be paid by the Subscriber in addition to the Fee.

4.7         Extension of the Term

(a)          Unless the Subscriber cancels the Subscription before the end of the Cancellation Period, the Subscriber agrees to renew the Subscription (Subscription Renewal) for another term equal to the Term for the Fee.

(b)          If WorkPlan increases the fees to access WorkPlan Learning Platform prior to a Subscription Renewal it may update the Fee if WorkPlan provides the Subscriber with at least 60 days’ notice of the Fee increase.

4.8         Cancelling the Account

(a)          The Subscriber may cancel its Subscription at any time by providing WorkPlan with a Cancellation Notice during the Cancellation Period.

(b)          On cancellation the Subscriber will retain access to its Account for the remainder of the Term.

4.9         Refunds

Subject to any applicable rights under the Competition and Consumer Act 2010(Cth)(ACL), the Subscriber agrees there will be no refunds of the Fee or any other charge under this Agreement for any reason including, but not limited to termination or cancellation of the Subscription outside of the Cancellation Period.

5.  Accounts and operation of the WorkPlan Learning Platform

5.1  User names and passwords

The Subscriber and its End Users must keep all usernames and passwords used to access the WorkPlan Learning Platform strictly confidential.

5.2         Security obligations

(a)          The Subscriber agrees that its End Users will keep all End User Account information confidential.

(b)          The Subscriber is responsible for:

(i)            all activity that occurs on the WorkPlan Learning Platform, whether authorised or not; and

(ii)          ensuring the accuracy of Data entered into the WorkPlan Learning Platform.

5.3         Use of Account information

(a)          Each End User is:

(i)            responsible for ensuring that it is the sole person accessing the WorkPlan Learning Platform using an Account; and

(ii)          expressly prohibited from sharing its Account information with third parties.

6.  Reporting and cooperation in the event of a Data loss

6.1         Subscribers warrant that:

(a)          if they become aware that an unauthorised third party has been given access to the Workplan Learning Platform by any of its End Users; or

(b)          if notified by any of its End Users that their personal information has been disclosed to a third party without their consent; then

(c)          it will report this to WorkPlan so an assessment can be made to determine whether the data loss is reportable; and

(d)          it will follow all reasonable directions provided by Us so that it can comply with its obligations under the Privacy Act 1988 (Cth) in relation to it assessment and reporting obligations contained in sections 26WA to 26WT of this act.

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7.  Support

In consideration of the Subscriber paying to WorkPlan the Fee, WorkPlan will provide support for the Term of the Agreement as follows:

7.1         Support request inclusions

(a)          WorkPlan will only accept support requests from a nominated Administrator.

(b)           An administrator has the following attributes:

(i)            The person has been identified by the Subscriber as an Administrator.

(ii)          The Administrator is identified by name and contact details in the Subscriber’s information retained in the subscriber management system maintained by WorkPlan.

(c)          WorkPlan will respond to the nominated Administrator(s) support requests. The Subscriber has responsibility to determine support request protocols and processes for persons within and outside the Subscriber’s organisation using the software service.

7.2         Hours of Support

(a)          Support pursuant to clause 7.1 is available to the Subscriber between Monday and Friday 8:30am to 5:00pm Australian Eastern Standard Time, (AEST). Support is not available on Australian National and Queensland State public holidays.

7.3         Support Request Exclusions

(a)          WorkPlan does not include any of the following items as part of support:

(i)            Training, communication of information and advice on systems related to the operation of the Software.

(ii)          Resolution of issues with Subscriber’s hardware, operating systems, databases, end user equipment/hardware, browser technology and network equipment and software.

(iii)         Management, administration, operation or configuration of any hardware utilised by the Subscriber or end users within or outside the Subscriber organisation.

7.4         Support Contact Details

(a)          Support requests received by any person who is not an Administrator will be referred to an Administrator within the Subscriber’s organisation.

(b)          Support is available to the Subscriber from the date access is granted to the WorkPlan Learning Platform.

(c)          Support requests must be directed to support@workplan.com.au

7.5         Scheduled maintenance

(a)          If it is necessary to interrupt the Subscriber’s use of the WorkPlan Learning Platform, WorkPlan will endeavour to provide with reasonable notice (where possible) of when it is anticipated that the WorkPlan Learning Platform will be unavailable.

(b)          The Subscriber acknowledges that access to the WorkPlan Learning Platform may be changed, interrupted or discontinued for many reasons beyond WorkPlan’s control and that during this time WorkPlan may make upgrades which may change the interface and manner in which the WorkPlan Learning Platform functions.

(c)          The Subscriber agrees that WorkPlan is not liable for any loss, foreseeable or not, arising from any interruption to the Subscriber and its End Users access to the WorkPlan Learning Platform.

7.6         Fair use policy

(a)          While WorkPlan does not impose limitation on access and use of the WorkPlan Learning Platform, WorkPlan reserves the right to place technical limits on use of the WorkPlan Learning Platform in order to maintain serviceability, availability and performance for all End Users which we at our sole and absolute discretion, consider to be fair and reasonable.

(b)          Where WorkPlan imposes a limitation on the Subscriber’s access to the WorkPlan Learning Platform pursuant to this clause 7, WorkPlan will endeavour to provide the Subscriber with reasonable notice (where possible) of any limitations imposed.

8. Rights in relation to Intellectual Property and Content

8.1         Intellectual Property

(a)          The Subscriber does not obtain any express or implied Intellectual Property rights, in the WorkPlan Learning Platform beyond the right to use it during the Term as described in this Agreement.

(b)          The Subscriber retains ownership of the Data and the Intellectual Property in the Content (if any) uploaded by its End Users to the WorkPlan Learning Platform and provides a non-exclusive licence to WorkPlan Learning to use the Data and Content for the purpose of operating the WorkPlan Learning Platform during the Term.

8.2         Content

(a)          The Subscriber and its End Users warrant:

(i)            they will not rely on any Third Party Content that is provided with the WorkPlan Learning Platform without making their own investigations into its suitability;

(ii)          that it owns or is authorised to use all Data uploaded to the WorkPlan Learning Platform and uploading it to the WorkPlan Learning Platform and licencing it for the express purpose of operating for the Subscriber, WorkPlan will not breach any third-party Intellectual Property rights; and

(iii)         that any Content uploaded will not be defamatory, libellous, scandalous or otherwise offensive to any reasonable person regardless of where such content is accessed.

8.3         Moderation of Content

(a)          WorkPlan reserves the right to suspend, or remove any Content that is published using the WorkPlan Learning Platform which in its sole discretion is deemed to be offensive or in any way unsuitable for publication.

(b)          The Subscriber irrevocably consents to such removal and agrees that WorkPlan is authorised to remove such content.

9.  Use of personal information

9.1         Privacy policy

(a)          The Subscriber and its End Users acknowledge that Data stored in the WorkPlan Learning Platform is stored on servers inside Australia and in accordance with WorkPlan’s Privacy Policy.  The Privacy Policy as amended from time to time, is available on the Website.

(b)          WorkPlan will comply with the Information Privacy Principles or the National Privacy Principles (as the case may be) set out in the Privacy Act 1988 (Cth) and other provisions of that Act to the extent relevant to this arrangement.

(c)          The Subscriber and its End Users acknowledge that the Software Service is operated by WorkPlan from a data centre located in Australia.  All data and Subscriber content will be located on computer servers located in Australia.

10.  Express prohibitions on use

(a)          The Subscriber and its End Users agree they must not:

(i)            infringe WorkPlan’s Intellectual Property rights in the WorkPlan Learning Platform;

(ii)          represent that they are associated with or otherwise endorsed by WorkPlan other than to state that they subscribe to use the WorkPlan Learning Platform;

(iii)         create a subdomain which is offensive or defamatory;

(iv)         include third party advertising of any kind;

(v)          use the WorkPlan Learning Platform in any way that could damage the reputation of Provider or the goodwill or other rights WorkPlan enjoy;

(vi)         permit any third Party to obtain access to the WorkPlan Learning Platform, or Documentation;

(vii)        reproduce, make error corrections to or otherwise modify or adapt the Intellectual Property in the WorkPlan Learning Platform or create any derivative works based on the WorkPlan Learning Platform and the Documentation;

(viii)       de-compile, disassemble, decrypt, or otherwise reverse engineer the WorkPlan Learning Platform or permit any third party to do so;

(ix)         transfer, sublicense, rent, lease, lend, license or otherwise transfer or assign the Intellectual Property in the WorkPlan Learning Platform; and

(x)          modify or remove any copyright or proprietary notices associated with the WorkPlan Learning Platform.

(b)          The Subscriber and its End Users agree that by doing any of the above acts is a breach of an essential term of this Agreement which may result in termination without prejudice to any other rights that WorkPlan may have in accordance with clause 14.

11.  Exclusion of warranties

11.1         WorkPlan’s warranty

(a)          To the maximum extent permitted by law, WorkPlan disclaims all warranties in relation to the WorkPlan Learning Platform and any Third Party Content not expressly made by WorkPlan and incorporated into this Agreement.

(b)          You expressly acknowledge and agree that, to the maximum extent permitted by law subject to WorkPlan’s compliance with the obligations contained in the ACL its officers, employees and agents expressly disclaim all warranties of any kind, whether express or implied, except the warranties that the WorkPlan Learning Platform is provided with clear title, is of acceptable quality, is fit for the particular purpose for which it were supplied and that it complies with its description (Non-Excludable Provisions).

(c)          WorkPlan makes no warranty that:

• the WorkPlan Learning Platform will meet the Subscriber’s exact requirements;
• that any Third Party Content is accurate, reliable and up to date;
• the performance of the WorkPlan Learning Platform will meet the Subscriber’s expectations.

11.2         Subscriber warranties

(a)          The Subscriber warrants that:

(i)            the WorkPlan Learning Platform has been obtained at the Subscriber’s own discretion and risk;

(ii)          it will use the WorkPlan Learning Platform strictly as required by any guidelines or recommendations provided by WorkPlan;

(iii)         it has made its own investigations into the suitability of the WorkPlan Learning Platform and is not relying on any representation not expressly made by WorkPlan;

(b)          no advice or information, whether oral or written, obtained from WorkPlan in relation to the WorkPlan Learning Platform creates any warranty not expressly stated herein.

12.   Limitation of liability

12.1         Exclusion of liability

(a)          WorkPlan is not liable to the Subscriber, and its End Users for any claim, loss, expense or damages, whether arising in contract, in tort (including negligence), in equity, by operation of law or otherwise arising out of or in connection with this Agreement or the WorkPlan Learning Platform which the Subscriber is provided with access to except as expressly provided for herein.

12.2         Exclusion of consequential losses

(a)          Subject to any claims made because of a breach of a non-excludable provision available under the ACL, WorkPlan, its employees, officers and agents are not liable for any loss or damage, including, but not limited to, direct, indirect or consequential losses including any form of consequential loss such as any third party loss, loss of profits, loss of revenue, loss of opportunity, loss of anticipated savings, loss or corruption of data, pure economic loss and an increased operating cost, personal injury or death, however suffered or sustained in connection with:

(i)            any inaccurate or incorrect information provided about the WorkPlan Learning Platform;

(ii)          the Subscriber’s and its End Users use of the WorkPlan Learning Platform;

(iii)         loss or damage of any Data of the Subscriber or User;

(iv)         any failure or delay including, but not limited to, the use or inability to use the WorkPlan Learning Platform; and

(v)          any interference with or damage to the Subscriber’s or its End User’s computers which occurs in connection with use of the WorkPlan Learning Platform.

12.3        Limitation of liability

Any loss or damage which is or may be suffered by the Subscriber in connection with the use of the WorkPlan Learning Platform, or the Third Party Content is expressly disclaimed by WorkPlan.  The aggregate liability for WorkPlan for breach of a warranty under this Agreement, or for a breach of a condition or warranty it cannot lawfully exclude to the extent permitted by law, and is fair and reasonable for WorkPlan to do so, will not exceed the Fee paid by the Subscriber to WorkPlan to access the WorkPlan Learning Platform for a period of one month.

Nothing in this Agreement attempts to limit or exclude liability of WorkPlan in compliance with section 64 of the ACL.

13.  Indemnity

(a)          The Subscriber indemnifies, and must keep indemnified, WorkPlan and its employees, officers and agents, against any actions, liability, claim, loss, damage, proceeding, expense (including legal costs) suffered or incurred by the Company, arising from or in connection with, either directly or indirectly the Subscriber’s breach of any of its obligations contained in this Agreement, including, but limited to, the making of a warranty that is inaccurate or incomplete.

(b)          The Subscriber and its End Users indemnify, defends and holds harmless WorkPlan in respect of all actions, claims, proceedings, demands, liabilities, losses, damages, expenses and costs (including legal fees on a full indemnity basis), in connection with:

(i)            any breach of a provision of this Agreement;

(ii)          the Subscriber and its individual End Users’ use of the WorkPlan Learning Platform including any negligent acts or omissions or publications; or

(iii)         use of the WorkPlan Learning Platform, including any third party claims made in connection with, or arising out of, the Subscriber’s use of the WorkPlan Learning Platform.

14.   Termination

14.1  Termination by WorkPlan

WorkPlan may terminate this Agreement without notice if:

(a)          it no longer has the right to provide the WorkPlan Learning Platform for any reason whatsoever;

(b)          the Subscriber commits a breach of a material term of this Agreement which is not capable of being remedied, after first notifying the Subscriber of such breach; or

(c)          a Change of Control occurs in relation to the Subscriber without the consent of WorkPlan; or

(d)          it is notified, after having made reasonable inquiries, that the Subscriber:

(i)            is reverse engineering or otherwise creating derivative works based on the Intellectual Property contained in the WorkPlan Learning Platform; and

(ii)          is attempting to circumvent any technological protection measure which limits the Subscriber’s End Users’ ability to access multiple instances of the WorkPlan Learning Platform.

(e)          The Subscriber is using the WorkPlan Learning Platform for a purpose other than what it was designed for and is otherwise consuming resources well above what is considered normal or usual in breach of the WorkPlan fair use policy.

14.2         Termination for non-payment

The payment of the Fee is an essential term of this Agreement.  WorkPlan may terminate this Agreement if the Subscriber does not pay the Fee within seven (7) days of the Fee being due and payable. WorkPlan shall provide five (5) days written notification of its intention to terminate this Agreement for non-payment by the Subscriber.

14.3         Actions upon termination or expiry of the Term

(a)          On termination of this Agreement or expiry of the Term for whatever reason:

(i)            the Subscriber and its End Users must stop accessing and using the WorkPlan Learning Platform;

(ii)          the End User must return or destroy all copies of the Documentation if it is provided separately with the WorkPlan Learning Platform; and

(iii)         the Subscriber agrees that the balance of any prepaid Fee is forfeited.

14.4         Notices and other communications

(a)          For all correspondence including notices in relation to this Agreement please contact WorkPlan at the address shown at the beginning.

(b)          If required, WorkPlan will contact the Subscriber via the contact details it has retained in its records.  If WorkPlan has multiple contact details for the Subscriber, it will use the most recent contact information to provide any Notices required.

15.    Dispute resolution

15.1         If a dispute arises between the Parties, the complainant must not commence any court or arbitration proceedings, except where that Party seeks urgent interlocutory relief, unless it has first complied with this clause:

• Notification

The complainant must inform the respondent in writing of the following:

• the nature of the dispute;
• the outcome the complainant desires, and
• the action the complainant believes will settle the dispute.

• Endeavour to resolve dispute

On receipt of the complaint by the respondent, both Parties will make every effort to resolve the dispute by mutual negotiation within fourteen (14) business days.

• Mediation

Any unresolved dispute or difference whatsoever arising out of or in connection with this agreement shall be submitted to mediation under the Mediation Rules of the Resolution Institute.

15.2         This clause 15 survives termination of this Agreement.

16.  General provisions

(a)          Access to the WorkPlan Learning Platform outside the Jurisdiction – No representation or warranty is made that the Content in the WorkPlan Learning Platform complies with the laws of any country outside of Australia.

(b)          Cooperation with law enforcement – WorkPlan will cooperate with law enforcement agencies when required to do so by an authority of competent and recognised jurisdiction in relation to Data held in the WorkPlan Learning Platform.

(c)          Event of Force Majeure – A Party who is prevented from performing any obligation under this Agreement (except an obligation to pay an amount of money) by the occurrence of an Event of Force Majeure is excused from the performance of any such obligation until they are no longer affected by the Event of Force Majeure.  This clause does not apply to any obligation to pay money.

(d)          Approvals and consents – Except where this Agreement expressly states otherwise, a Party may, in its discretion, give conditionally or unconditionally or withhold any approval or consent under this Agreement.

(a)          Assignment – WorkPlan may assign any of its rights and obligations under this Agreement by notifying the Subscriber of such an assignment.  The Subscriber may not assign its rights under this Agreement without the prior written consent of WorkPlan which may be granted or withheld at our complete discretion and, if granted, may be subject to conditions.

(b)          Confidentiality – the Party who receives Confidential Information (Receiving Party) will not use the Confidential Information for any purpose except as expressly authorised by this Agreement. Except as expressly provided in this Agreement, the Receiving Party will not disclose Confidential Information to any third party and will protect and treat all Confidential Information with the same degree of care as it uses to protect its own confidential information of like importance, but in no event with less than reasonable care.  Except as expressly provided in this Agreement, the Receiving Party will not use, make, or have made any copies of Confidential Information, in whole or in part, without the prior written authorisation of the Party disclosing the Confidential Information (Disclosing Party).  In the event that the Receiving Party is required to disclose Confidential Information pursuant to law, the Receiving Party will notify the Disclosing Party of the required disclosure with sufficient time for the Disclosing Party to seek relief, will cooperate with the Disclosing Party in taking appropriate protective measures and will make such disclosure in a fashion that maximises protection of the Confidential Information from further disclosure.

(c)          Costs – The Parties to this Agreement must pay their own costs of negotiating and executing any instrument or document executed to give effect to it.

(d)          Counterparts – This Agreement may be executed by the Parties in any number of identical counterparts.  Each counterpart is deemed to be validly executed if it is signed by a Party and sent by electronic mail to the other Party.  It comes into effect when all identical counterparts have been validly executed.  For the purpose of executing this Agreement or any document required by it, the Parties agree that any signature is valid and the document is validly executed if it is produced by an electronic communication as provided by the Electronic Transactions Act 2001(Qld).

(e)          Entire agreement – This document contains the entire agreement between the Parties in connection with its subject matter and supersedes all previous agreements and understandings except as otherwise provided herein.

(f)            Further assurances – Each Party must do anything (including execute any document) and must ensure that its personnel do anything (including execute any document), the other Party may reasonably require to give full effect to this Agreement.

(g)          Governing law and jurisdiction – This Agreement is governed by the laws of Queensland, Australia and each Party irrevocably submits to the non-exclusive jurisdiction of the Courts of Queensland, Australia.

(h)          Severance – If anything in this Agreement is unenforceable, illegal or void then it is severed and the rest of this Agreement remains in full force and effect.

(i)            Survival – Any clause which is expressed to survive, or which by its nature is intended to survive termination of this Agreement, survives termination.

(j)            Variation – An amendment or variation to this Agreement is not effective unless it is in writing and signed by the Parties.

            Waiver – A Party’s failure or delay to exercise a power or right does not operate as a waiver of that power or right.  A waiver is not effective unless it is in writing and signed by the Party giving it.