TERMS OF USE
These Terms of Use are effective as of 23 July 2024. In these Terms, when we say you or your, we mean both you and any entity you are authorised to represent (such as your employer). When we say we, us, or our, we mean Lockshine Pty Ltd T/A Yarno (ACN 604 720 210). We and you are each a Party to these Terms, and together, the Parties.
1. Acceptance
1.1 You accept this Agreement by the earlier of:
- (1) confirming your acceptance via the platforms or applications through which we provide this Agreement to you, including Qwilr;
- (2) signing and returning the Agreement we provide to you; and
- (3) confirming by email that you accept the Agreement.
(a) This Agreement commences on the date you accept the Agreement in accordance with clause 1(d) and continues for the Term.
2. Your Obligations
2.1 During the Term, you agree to:
(a) use your best efforts to introduce Referrals to us;
(b) provide sales support at contract renewal;
(c) comply with this Agreement, all applicable Laws, and our reasonable requests;
(d) conduct business in a manner that reflects favourably on us, including by not making any false or misleading representations about our business; and
(e) any other obligations agreed between the Parties in writing.
3. Our Obligations
3.1 During the Term, we agree to:
(a) provide you with support in relation to Yarno including sales, customer success management, customer and learner support and administration,
(b) any other obligations agreed between the Parties in writing.
4. Referrals
4.1 We may reject any Referral that already has an existing contractual relationship with us.
4.2 If you become aware of any actual or potential conflict of interest between this Agreement and any other work you are undertaking, you agree to inform us in writing and take reasonable steps to resolve the conflict.
4.3 You have no authority or right to enter into any contracts, instruments or commitments in our name, or on our behalf, or to bind us to any legal arrangement with a Referral.
5. Payments and Reporting
5.1 We will pay you the Fees during the Term, and promptly following:
(a) the end of each quarter during the Term; and
(b) the last day of the Term,
we agree to provide you with a written statement setting out the details of all Referrals accepted by us and not rejected under clause 3, and any applicable Fees payable by us to you, for the immediately preceding period (Sales Report).
5.2 Following receipt of our Sales Report, you must invoice us for the applicable Fees. We will make payment using the payment method set out in the invoice, within 14 days from the date of the invoice (or as otherwise set out in the Proposal or agreed between the Parties). We will only make payment on invoices that have been paid by the Referral, contain your details and an itemised description of the Referrals provided and the amounts to be paid.
5.3 The Parties acknowledge and agree that:
(a) if a Referral requests custom content in addition to that which is covered by Our Materials:
(i) we will quote, create and deliver the content to the Referral;
(ii) the costs for developing such content will be the responsibility of Lockshine.
5.4 You agree that we may set-off or deduct from any monies payable to you under this Agreement, any amounts which are payable by you to us under this Agreement.
6. Intellectual Property
Licence to Pre-Existing IP
6.1 As between the Parties, we own all Intellectual Property Rights in Our Materials and you own all Intellectual Property Rights in Your Materials and nothing in this Agreement constitutes a transfer or assignment of such Intellectual Property Rights.
6.2 We grant you a royalty-free, worldwide, non-exclusive, revocable, non-perpetual, non-sub-licensable and non-transferable right and licence to use Our Materials we provide to you for the sole purpose of performing your obligations, as contemplated by this Agreement.
6.3 You grant us a royalty-free, worldwide, non-exclusive, non- sub-licensable and non-transferable right and licence to use Your Materials you provide to us for the sole purpose of performing our obligations, as contemplated by this Agreement.
Ownership of Our Materials
6.4 The Parties agree that:
(a) all Intellectual Property Rights in Our Materials will be owned by Lockshine;
(b) all Intellectual Property Rights in Our Materials may be used by you on a non-exclusive, revocable, non-perpetual, non-sub-licensable and non- transferable basis for the purposes of performing their obligations under this Agreement;
(c) if any third-party creator or contributor to Our Materials has any Moral Rights in Our Materials, the relevant Party consents, and must procure that any applicable third party creator or contributor consents to the infringement of those Moral Rights.
6.5 Unless otherwise agreed between the Parties in writing, each Party must only use Our Materials as follows:
(a) in the exact manner in which it has been developed pursuant to this Agreement;
(b) where Our Materials contains a logo or other mark, such logo or mark must remain on Our Materials;
(c) Our Materials must not be reverse engineered or decompiled in any way;
(d) Our Materials must not be copied, modified, enhanced or adapted in any way.
6.6 Except as outlined in this Agreement or otherwise agreed between the Parties in writing, a Party may not seek to Commercialise OurMaterials without the prior written approval of the other Party.
6.7 This clause 6 will survive termination or expiry of this Agreement.
7. Confidential Information
7.1 Each Receiving Party agrees:
(a) not to disclose the Confidential Information of the Disclosing Party to any third party (subject to subclause 7.1(c));
(b) to protect the Confidential Information of the Disclosing Party from any loss, damage or unauthorised disclosure;
(c) to only disclose the Confidential Information to those of its Personnel who need to know the Confidential Information in connection with this Agreement, provided those Personnel keep the Confidential Information confidential in accordance with this clause 7; and
(d) to only use the Confidential Information of the Disclosing Party for the purpose of performing obligations, or exercising rights or remedies, under this Agreement.
7.2 The obligations in clause 7.1 do not apply to Confidential Information that:
(a) is required to be disclosed for the Parties to comply with their obligations under this Agreement;
(b) is authorised in writing to be disclosed by the Disclosing Party;
(c) is in the public domain or is no longer confidential, except as a result of a breach of this Agreement or other duty of confidence; or
(d) must be disclosed by Law or by a regulatory authority, including under subpoena, provided that (to the extent permitted by Law) the Receiving Party has given the Disclosing Party notice prior to disclosure.
7.3 Each Party agrees that monetary damages may not be an adequate remedy for a breach of this clause 7. A Party is entitled to seek an injunction, or any other remedy available at Law or in equity, at its discretion, to protect itself from a breach (or continuing breach) of this clause 7.
7.4 This clause 7 will survive the termination of this Agreement.
8. Term and Termination
8.1 This Agreement will operate for the Term.
8.2 The Parties may, by mutual agreement in writing, terminate this Agreement at any time.
8.3 This Agreement will terminate immediately upon written notice by a Party (Non-Defaulting Party) if the other Party (Defaulting Party) breaches a material term of this Agreement and that breach has not been remedied within 10 Business Days of the Defaulting Party being notified of the breach by the Non-Defaulting Party.
8.4 Upon expiry or termination of this Agreement no further fees will be paid by us to you.
8.5 Upon expiry or termination of this Agreement each Party may retain a single copy of the other Party’s information only to the extent required by Law, provided that each Party handles the other Party’s information in accordance with clause 7.
8.6 Termination of this Agreement will not affect any rights or liabilities that a Party has accrued under it.
8.7 This clause 8 will survive the termination or expiry of this Agreement.
9. General
9.1 Amendment: This Agreement may only be amended by written instrument executed by the Parties.
9.2 Assignment: A Party must not assign, novate or deal with the whole or any part of its rights or obligations under this Agreement without the prior written consent of the other Party (such consent is not to be unreasonably withheld).
9.3 Disputes: A Party may not commence court proceedings relating to any dispute, controversy or claim arising from, or in connection with, this Agreement (including any question regarding its existence, validity or termination) (Dispute) without first complying with this clause 9.3. A Party claiming that a Dispute has arisen must give written notice to the other Party specifying the nature of the Dispute (Dispute Notice). The Parties must meet (whether in person, by telephone or video conference) within 10 Business Days of service of the Dispute Notice to seek (in good faith) to resolve the Dispute.
If the Parties do not resolve the Dispute within 20 Business Days of the date the Dispute Notice was served (or such further period as agreed in writing by the Parties), either Party may refer the matter to mediation, administered by the Australian Disputes Centre, to be conducted in Sydney, New South Wales, in accordance with the Australian Disputes Centre Guidelines for Commercial Mediation.
Nothing in this clause will operate to prevent a Party from seeking urgent injunctive or equitable relief from a court of appropriate jurisdiction.
9.4 Further Assurance: Each Party must to promptly do all things and execute all further instruments necessary to give full force and effect to this Agreement and their obligations under it.
9.5 Governing Law: This Agreement is governed by the laws of New South Wales. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in New South Wales and any courts entitled to hear appeals from those courts and waives any right to object to proceedings being brought in those courts.
9.6 Notices: Any notice given under this Agreement must be in writing addressed to the addresses set out in this Agreement, or the relevant address last notified by the recipient to the Parties in accordance with this clause. Any notice may be sent by standard post or email, and will be deemed to have been served on the expiry of 48 hours in the case of post, or at the time of transmission in the case of transmission by email.
9.7 Privacy: Each Party agrees to comply with the legal requirements of the Australian Privacy Principles as set out in the Privacy Act 1988 (Cth) (as if it were an “APP entity” as defined in the Privacy Act 1988 (Cth)), and any other applicable Law relating to the privacy of information. Each Party further agrees to only use information about Referrals it obtains from the other Party solely for the purpose for which it was disclosed, and to keep such information secure and protect it from unauthorised use or disclosure.
9.8 Publicity: Despite clause 7, each Party may advertise or publicise the existence and broad nature of the referral relationship between the Parties. However, a Party must not reveal the amount of Fees generated under this Agreement unless required by Law.
9.9 Relationship of Parties: This Agreement is not intended to create a partnership, joint venture, employment or agency relationship between the Parties.
9.10 Subcontracting: You may not subcontract any part of your obligations without our prior written consent. You agree that any approval to subcontract given by us does not discharge you from any liability under this Agreement and that you are liable for the acts and omissions of your subcontractor.
10. Liability
10.1 Despite anything to the contrary, to the maximum extent
permitted by Law:
(a) neither Party will be liable for Consequential Loss;
(b) a Party’s liability for any Liability under this Agreement will be reduced proportionately to the extent the relevant Liability was caused or contributed to by the acts or omissions of the other Party (or any of its Personnel), including any failure by that other Party to mitigate its loss; and
(c) our aggregate liability for any Liability arising from or in connection with this Agreement will be limited to the Fees paid by us to you in the 12 months preceding the day on which the matter occurred that gave rise to the relevant Liability.
11. Definitions
In this Agreement, unless the context otherwise requires, capitalised terms have the meanings given to them in the Proposal, and:
Agreement means these terms and conditions and any documents attached to, or referred to in, each of them.
Business Day means a day on which banks are open for general banking business in Sydney, New South Wales, excluding Saturdays, Sundays and public holidays.
Commencement Date means the date this Agreement is accepted by you in accordance with clause 1.1.
Commercialise means, in relation to Our Materials, to:
(a) manufacture, sell, hire out or provide goods or service incorporating Our Materials; or
(b) otherwise ‘exploit’ or exercise the rights of a Party in relation to the Intellectual Property Rights deriving from Our Materials.
Commercial Transaction means any commercial activity or arrangement between a Party and a Referral in relation to Yarno.
Confidential Information means information which:
(a) is disclosed to the Receiving Party in connection with this Agreement at any time;
(b) relates to the Disclosing Party’s business, assets or affairs; or
(c) relates to the subject matter of, the terms of and/or any transactions contemplated by this Agreement,
whether or not such information or documentation is reduced to a tangible form or marked in writing as “confidential”, and howsoever the Receiving Party receives that information.
Consequential loss includes any consequential loss, special or indirect loss, real or anticipated loss of profit, loss of benefit, loss of revenue, loss of business, loss of goodwill, loss of opportunity, loss of savings, loss of reputation, loss of use and/or loss or corruption of data, whether under statute, contract, equity, tort (including negligence), indemnity or otherwise.
Disclosing Party means the Party disclosing Confidential Information to the Receiving Party.
Fees means the commission fee we agree to pay to you for each Referral as set out in the Proposal.
Intellectual Property Rights or Intellectual Property means any and all existing and future rights throughout the world conferred by statute, common law, equity or any corresponding law in relation to any copyright, designs, patents or trade marks, domain names, know-how, inventions, processes, trade secrets or confidential information, circuit layouts, software, computer programs, databases or source codes, including any application, or right to apply, for registration of, and any improvements, enhancements or modifications of, the foregoing, whether or not registered or registrable.
Law means all applicable laws, regulations, codes, guidelines, policies, protocols, consents, approvals, permits and licences, and any requirements or directions given by any government or similar authority with the power to bind or impose obligations on the relevant Party in connection with this Agreement.
Liability means any expense, cost, liability, loss, damage, claim, notice, entitlement, investigation, demand, proceeding or judgment (whether under statute, contract, equity, tort (including negligence), indemnity or otherwise), howsoever arising, whether direct or indirect and/or whether present, unascertained, future or contingent and whether involving a third party or a Party to this Agreement or otherwise.
Moral Rights has the meaning given in the Copyright Act 1968 (Cth) and includes any similar rights in any jurisdiction in the world.
Our Materials means any Intellectual Property which is owned by or licensed to us and any improvements, modifications, enhancement of such Intellectual Property, including any Intellectual Property related to Yarno, our software, databases, systems or source codes, but excludes Your Materials.
Personnel means, in respect of a Party, any of its employees, consultants, suppliers, subcontractors or agents, but does not include the other Party.
Proposal means the page or website setting out the commercial details of this Agreement, to which this Agreement is attached by reference.
Receiving Party means the Party receiving Confidential Information from or on behalf of the Disclosing Party.
Referral means a person referred by you to us for the purpose of that person entering into a Commercial Transaction with us.
Term means the term of this Agreement as set out in the Proposal.
Your Materials means all Intellectual Property which is owned by or licensed to you and any improvements, modifications or enhancements of such Intellectual Property, but excludes Our Materials.
Yarno means our online learning platform.