These Training Terms and Conditions apply to and govern all training services provided by Fluent Commerce, including the Training Courses, and all related access to and use of Training Materials, LMS, Training Environments and any other Fluent Materials.
- Definitions
Affiliate means, in relation to a contracting party to this Agreement, any entity which directly or indirectly controls, is controlled by, or is under common control with, that contracting party. "Control," for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the contracting party.
Aggregated Anonymous Data has the meaning given to that term in clause 9.1 of these terms and conditions.
Client means any entity who has entered into a 'client' agreement with Fluent Commerce or its Affiliates governing access to and use of Fluent Services for the client's business purposes.
Company means the Partner or Client company entity named in the Registration Form.
Confidential Information means in relation to either party, information (whether in oral, written or electronic form) belonging or relating to that party, its business affairs, technologies, designs, personnel, copyrights, concepts, methodologies, software or activities which is not in the public domain and which a) either party has marked as confidential or proprietary; b) either party, orally or in writing has advised the other party is of a confidential nature; or c) due to its character or nature, a reasonable person in a like position and under like circumstances would treat as confidential. For clarity, Fluent Materials are Fluent Commerce's Confidential Information.
Downloaded Material has the meaning given to that term in clause 4.3 of these terms and conditions.
Fees means the fees for any Training Course current at the time of Registration, as set out in the Registration Form, LMS or Training Course Description from time to time.
Fluent Commerce means Fluent Retail Pty Ltd with company number ACN 132 599 154 of Level 5, 68 Harrington Street, The Rocks, New South Wales, 2000, Australia.
Fluent Materials has the meaning given to that term in clause 12.1 of these terms and conditions.
Fluent Services means all "software-as-service" solutions and related services commercialised by Fluent Commerce or any of its Affiliates from time to time.
Force Majeure Event means any events, circumstances or causes beyond a party's reasonable control, including without limitation: (a)acts of God, flood, drought, earthquake or other natural disaster, (b) epidemic or pandemic, (c) terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations, (d) nuclear, chemical or biological contamination or sonic boom, (e) any law or any action taken by a government or public authority, including without limitation imposing an export or import restriction, quota or prohibition, (f) collapse of buildings, fire, explosion or accident and (g) diminishment, interruption or failure of utility or data centre service, or denial of service or malicious external security attack.
GDPR means the EU General Data Protection Regulations as modified.
Intellectual Property Rights mean all patents, rights to inventions, utility models, copyright and related rights, trademarks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.
LMS means the learning management system powered by LearnUpon and used by Fluent Commerce (or its Affiliates) in connection with the Training Courses.
LMS User means an individual Training Participant who is provided with a unique user ID and password for accessing the LMS, pursuant to a request by the Company.
Partner means any entity who has entered into a partner agreement or partner non-disclosure agreement with Fluent Commerce or its Affiliates.
Personal Data whether the term is capitalised or not, means "personal data" or "personal information" as that those terms are respectively defined in the GDPR and the Australian Privacy Act 1988 (Cth).
Registration has the meaning given to that term in clause 2.5 of these terms and conditions.
Registration Form means a written order or registration form submitted by the Company to register a Training Participant for access to the LMS and to Training Courses.
Training Course means a training course, which may take the form of a package of webinars, instructor-led training sessions, presentations, demonstrations and/or hands-on exercises.
Training Course Description means the description published by Fluent Commerce which summarises a particular Training Course.
Training Environments means all sandbox or other types of non-production environments of the Fluent Services relevant to certain Training Courses, made available to the Training Participant as part of, or in connection with, those Training Courses.
Training Forum means an online forum or means by which the Training Participants can communicate feedback to Fluent Commerce in relation to any Training Courses.
Training Materials means the training materials related to Training Courses and made accessible to Training Participants as set out in these terms and conditions, excluding Training Environments and the LMS.
Training Participant means an individual person nominated by the Company to be invited by Fluent Commerce to access the LMS and/or to be registered for Training Courses.
Training Pre-requisite means any pre-requisite specified in the Training Course Description or Registration Form or in the LMS, including but not limited to audience, skills, certification, qualification or system access, before a Training Participant can be register for a Training Course, or obtain access to a Training Environment and/or the LMS.
Training Purposes means (i) practising the skills obtained through the Training Courses and (ii) further developing the Training Participant's skills and knowledge related Fluent Services which are gained through the Training Courses.
Training Recordings means a form of Training Material consisting of a recording of an instructor-led training session of a Training Course.
- Registration
2.1. The Company agrees to be bound by these terms and conditions when the Company submits a Registration Form to request registration of one or more Training Participants for training and/or LMS access. If the Company does not agree with these terms and conditions, it should not submit the Registration Form.
2.2. The Training Participant agrees to be bound by these terms and conditions on the earlier of the Training Participant accessing the LMS and participating in a Training Course. If the Training Participant does not agree with these terms and conditions, it should process with accessing the LMS or any kind of Registration.
2.3. A Training Participant shall always be linked the Company responsible for that person at any given time, unless otherwise agreed in writing by Fluent Commerce. Fluent Commerce is not required to accept or complete the registration until such time as all details requested by Fluent Commerce about the Training Participant and the Company have been provided to, and confirmed by, Fluent Commerce.
2.4. A Registration Form is accepted by Fluent Commerce only upon written acceptance of the Registration Form. Fluent Commerce is not obliged to accept a Registration Form (in whole or part), acting reasonably and in good faith. Acceptance of the Registration Form in respect of a particular Training Participant is deemed if that Training Participant is granted access to the LMS.
2.5. The Company may register Training Participants for particular Training Courses using the Registration Form, or the Training Participant may register themselves through the LMS, or the Company and/or Training Participant may register for Training Courses using such other registration method as may be introduced by Fluent Commerce from time to time (Registration).
2.6. Notwithstanding the Registration method used, if Fees are charged in respect of a particular Training Course, the Training Participant and the Company are jointly and severally liable to Fluent Commerce for payment of those Fees.
- Training Courses and Training Materials
3.1. All Training Courses are delivered online, unless otherwise agreed by Fluent Commerce.
3.2. For instructor-led sessions of Training Courses, Fluent Commerce shall use commercially reasonable efforts to deliver those sessions on and at the scheduled dates and the times. However Fluent Commerce reserves the right to reschedule any Training Course or part thereof at any time and at its discretion, and in such a case, Fluent Commerce shall provide as much notice as reasonable possible having regard to the circumstances and reasons for rescheduling.
3.3. As all Training Courses relate to the Fluent Services, and these services are constantly evolving, so related Training Courses will also evolve and Fluent Commerce reserves the right to modify, cancel and/or discontinue Training Courses and related Training Materials at any time at its discretion.
3.4. Fluent Commerce reserves the right to cancel any Training Courses with reasonable given to the Training Participant. In such circumstances, a Training Participant will be automatically booked into the next available Training Course of a similar type, and if Fluent Commerce stops offering the same Training Course or any others of a similar type, the Training Participant will be given the option (a) to book into a different type of Training Course or (b) to request a full cancellation and refund or credit of Fees (if a Fee has been charged and paid). Where (a) applies and Fluent Commerce charges a Fees for the Training Course that has been cancelled, a Fee variation will be processed for a new booking if the Fees referrable to the old and new Training Courses differ.
3.5. The Training Participant or the Company shall provide at least 5 days' notice if the Training Participant can no longer attend any instructor-led Training Course (or that part of the Training Course that is instructor-led). In the event this non-attendance notice is not given within this timeframe, then Fluent Commerce reserves the right to charge 100% of any applicable Fees. - Training Materials
4.1. Training Materials may be provided as part of the Training Course and will be accessible via the LMS unless otherwise stated by Fluent Commerce. The Training Participant shall only use the Training Materials for the Training Purposes and in accordance with the restrictions on use as expressed in these in these terms and conditions.
4.2. If all Training Participants attending the same instructor-led training session agree that the session can be recorded, the related Training Recording will be made available to all such attendees and will become part of the Training Materials.
4.3. Some Training Materials may be downloadable. If a copy of any Training Material is downloaded in compliance with any related guidelines (Downloaded Material), Fluent Commerce hereby grants the Training Participant a non-exclusive, non-transferrable, limited right to use the Downloaded Material solely for the Training Purposes, and for a maximum period of 3 years from the date of completion of the related Training Course.
4.4. The Training Participant shall not reproduce or make copies of or share or distribute any Downloaded Material with or for the benefit of any other persons and shall not attempt to download any Training Materials that are only accessible online and not available to download. - LMS
5.1. Fluent Commerce uses the LMS to administer, deliver (in part of in whole) and manage its Training Courses and related Training Materials.
5.2. Fluent Commerce will set the Training Participant as a LMS User.
5.3. The Training Participant shall use the LMS solely for the Training Purposes and only as expressly permitted or restricted in these terms and conditions.
5.4. The Training Participant shall keep its LMS User password secret and secure and is prohibited from sharing its LMS User login and password with any person, or allowing any person to access the LMS using such information.
5.5. The Training Participant may contribute Feedback through the Training Forum provided it complied with all related terms and conditions including clause 7 below. Fluent may determine at its sole discretion how it responds or otherwise use the Feedback, including deleting any and all Feedback from the Training Forum at any time and at its discretion and without reason.
5.6. Access to the LMS is provided to the Training Participant for as long as reasonably determined by Fluent Commerce, including based on use or thereof of the LMS and/or registration and completion, or lack thereof, of the Training Course. Notwithstanding, provided the Training Participant is complying at all times with these terms and conditions, access to the LMS will be provided for a minimum period of 30 days following the Training Participant initial login to a Training Course (in respect of which they are registered). - Training Environments
6.1. Some Training Courses may involve hands-on practice using Training Environments, in which case, access to Training Environments will be provided by Fluent Commerce to the Training Participant on a limited basis and for maximum period of 30 days following completion of a Training Course. If it becomes clear that a Training Participant will not complete a Training Course or is likely not to complete such course, access the Training Environment will be revoked.
6.2. The Training Participant must not, and the Company must ensure that the Training Participant, does not at any time load any Personal Data into the Training Environments or use any Training Environments otherwise than strictly in accordance with these term and conditions.
6.3. The Training Environments are only to be used by the Training Participant for the Training Purposes. All other uses are strictly prohibited, including, but not limited to, use in connection with any Company business or with any customer or client of the Company.
6.4. These terms and conditions do not give the Company or the Training Participant any rights to access and/or use Fluent Services to any purpose other than the Training Purposes and then only via the LMS and/or Training Environments and then only in accordance with the permission and restrictions set out herein. - Acceptable Use Policy
7.1. The Training Participant shall not, and the Company shall ensure that the Training Participant does not: (a) load large amounts of data into Training Environments or use Training Environments to perform tests of any kind, other than those tests directly relevant to the Training Course and then only for Training Purposes; (b) access, or attempt to access, any Training Materials that are not related to the Training Course(s) for which they are Registered; (c) share with or allow any other person to use the login and password for the LMS and/or unique account designated to the Training Participant for the Training Environment; (d) store, distribute, post, upload or transmit any materials, including any feedback, to or through the LMS and/or the Training Environments that is or may reasonably perceived to be infringing, unlawful or in violation of any third party rights, including privacy rights; (e) introduce any virus, worm, malware, spyware, Trojan horse or other harmful or malicious code to the LMS or the Training Environments; (f) interfere with or disrupt the integrity, performance or security of the LMS or the Training Environments; (g) upload, submit or store in the LMS any Personal Data relating to any person other than the Training Participants or the Company representative (if applicable); (h) upload, submit or store in the Training Environments any Personal Data of any kind; (i) use the Fluent Materials for any illegal, unauthorized or otherwise improper purposes or in any way that violates or is prohibited by law, regulation, governmental order or decree, including in any manner that would a breach of any sanctions or trade or export laws; to send spam or otherwise unsolicited messages; (j) access or use the Fluent Materials in breach of these terms and conditions.
7.2. The Training Participant shall promptly comply with Fluent Commerce's reasonable instructions and guidelines with regards to access to and use of the Fluent Materials. 7.3. Fluent Commerce reserves the right to monitor on an on-going basis usage of LMS and Training Environments, including for compliance with this clause 7, and Fluent Commerce may revoke access, use and licence to all Fluent Materials made available to the Training Participant if the Training Participant breaches these terms and conditions. - Training Pre-requisites
8.1. Fluent Commerce recommends that the Training Pre-requisites and other connectivity requirements set out in this clause, are met as these are intended to enable the Training Participant to obtain a maximum benefit from the Training Course.
8.2. Any requests for exemptions to Training Pre-requisites shall be considered by Fluent Commerce acting reasonably and in good faith.
8.3. Notwithstanding, if access or system-related Training Pre-requisites are not met, this may impact on the Training Participants experience and ability to obtain the full benefit of the Training Course.
8.4. The Company and/or Training Representative (but not Fluent Commerce or its Affiliates) are responsible for maintaining an internet connection allowing connectivity over the internet to the access the Fluent Materials.
8.5. Fluent Commerce will not be in breach of these terms and conditions because Training Pre-requisites are not met. - Aggregated Anonymous Data
9.1. Fluent Commerce may collate data, including statistical or feature or functionality usage metrics) in connection with the use by Training Participants of Fluent Materials, which data is anonymized and aggregated so that it does not contain any information identifiable or attributable to an individual Training Participant, either alone or in combination with other data (Aggregated Anonymous Data). To the extent that any Aggregated Anonymous Data is collected by Fluent Commerce, the Company and the Training Participant agree that Fluent Commerce and its Affiliates and licensors may use, store, analyze, and disclose such Aggregated Anonymous Data without the need for any consent. - Fees and Payment Terms
10.1. Feesare payable in accordance with this clause 7. Except as otherwise stated in these terms and conditions, payment obligations are non-cancellable, and Fees paid are non-refundable.
10.2. All Fees and expenses are exclusive of all applicable taxes, including, for example, value-added, sales, withholding and/or use taxes assessable by any jurisdiction whatsoever (collectively, Taxes). The Company is responsible for paying all Taxes associated with its purchases hereunder. For clarity, Fluent Commerce is solely responsible for taxes assessable against it based on its income, property and employees. If the Company is required by law to make any deductions or withholdings from payments to Fluent Commerce, the Company shall pay such additional amounts to Fluent Commerce as may be necessary to ensure that the actual amount received by Fluent Commerce after deduction or withholdings (and after payment of any additional taxes due as a consequence of such additional amount) shall equal the amount that would have been payable to Fluent Commerce if such deductions or withholdings were not required. All Fees are exclusive of good and services taxes or value-added taxes (GST or VAT), unless otherwise stated. If a GST or VAT liability arises to Fluent Commerce, the relevant price will be increased to account for such liability.
10.3. Fluent Commerce will invoice Fees upon Registration. All invoices submitted by Fluent Commerce, which are not the subject of a bona fide dispute, shall be payable by Client in full and without deduction within thirty (30) days of the date of invoice.
10.4. Notwithstanding and without limiting any other provision of these terms and conditions, Fluent Commerce may temporarily suspend the Training Participant's right to access or use any portion of the LMS, Training Materials, Training Courses or Training Environments for any non-payment of undisputed Fees where such Fees are at least 10 or more days overdue, and payment has not been received within 7 days of a notice of non-payment. - Termination
11.1. These terms and conditions terminate when the Training Participants access to the LMS is revoked or if the terms and conditions are replaced as set out in clause 19.5. The duration of the Training Participants access to the LMS will vary depending on a number of factors, including use or lack thereof of the LMS or Training Courses, completion of all Training Courses, where the Training Participant is no longer associated with the Company, or because of a change to the Fluent Commerce business model or a change of underlying LMS provider. Fluent Commerce will give at least 30 days' prior written notice to the Training Participant of any access revocation, and, where applicable, will consider in good faith all reasonable requests to reverse the revocation.
11.2. In the event the Training Participant or the Company breaches any provision of these terms and conditions and fails to cure such breach within a reasonable time (in any case no more than ten (10) days) after receipt of written notice from Fluent Commerce, Fluent Commerce shall have the right to immediately terminate these terms and conditions by written notice to the Training Participant and/or the Company as applicable. Upon any such termination, the Training Participant and/or the Company shall immediately cease use of all Fluent Materials and delete and destroy any tangible or electronic embodiments of the Fluent Materials in its possession and certify in writing to Fluent Commerce that the foregoing has been completed.
11.3. Termination for any reason whatsoever does not limit and is without prejudice to any rights or remedies available to a party under these terms and condition.
11.4. Clauses 9, 10, 11.4, 12, 13, 15, 16 and 19 survive termination and will remain in force and have full effect. - Intellectual Property Rights
12.1. Fluent Commerce and its relevant Affiliates and licensors own all rights, title and interest (including all Intellectual Property Rights) in and to (i) the Training Courses, (ii) The Training Materials, (iii) the LMS, (iv) the Fluent Services, (v) the Training Environments and (vi) any other materials made available to the Company and/or the Training Participant in connection with any training services provided by Fluent Commerce or its Affiliates ("Fluent Materials"). Access and use of Fluent Materials are solely for the Training Purposes and otherwise as expressly permitted or restricted in these terms and conditions. All other rights are reserved by Fluent Commerce.
12.2. The Training Participant shall not, and the Company shall ensure that the Training Participant does not: (a) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit the Fluent Materials or make them available to any third party; (b) reproduce or create derivative works of the Training Materials; (c) copy, modify, adapt, translate, distribute, sub-license, market, lease, make available, resell, make derivative works of, disassemble, reverse compile or reverse engineer or otherwise reduce to human-perceivable form any part of the LMS, Fluent Services or Training Environments, or discover or disclose the source code, methods and concepts embodied therein, except as may be allowed by any applicable law notwithstanding contractual prohibition; or (d) access and use the Fluent Materials in order to: (i) build product or service competitive with the LMS, Fluent Services and Training Environments; or (ii) copy any features, functions or graphics of the LMS, Fluent Services and Training Environments; or (iii) determine whether the LMS is within the scope of any patent.
12.3. The Training Participant hereby grants to Fluent Commerce a non-exclusive, worldwide, fully paid-up, royalty-fee, non-terminable, perpetual, irrevocable right and license to use, disclose, modify, reproduce, license, distribute, commercialize and otherwise freely exploit any feedback, requirements or suggestions, or software development (and all related Intellectual Property Rights) made by the Training Participant with respect to, or using, the Fluent Materials (the "Feedback"), without restriction of any kind and without any right of accounting. Fluent Commerce owns all rights, title and interests, including all Intellectual Property Rights, in all software developments, enhancements, changes, updates or other developed materials relating to the Fluent Materials created by Fluent Commerce, its Affiliates or licensors, that are based on or incorporate any Feedback, and Fluent Commerce is not limited or restricted in any way in its future use of such software developments, enhancements, changes, updates, or developed materials, that such use constitutes neither an unauthorized disclosure of Client Confidential Information nor an infringement of any Intellectual Property Rights, and that it shall not bring any claim of any kind against Fluent Commerce in connection with such use.
12.4. The Training Participant and/or the Company, as applicable, hereby assigns to Fluent Commerce by way of present or future assignment of the Intellectual Property Rights in any and all developments it generates using the Fluent Materials in the Fluent Environments, free from all encumbrances and infringements with full title guarantee immediately on creation, and will do all things necessary or as reasonably requested by Fluent Commerce at any time to enable such title and rights to vest in Fluent Commerce. - Confidentiality
13.1. Subject to clause 13.2, each Recipient party shall: (a) treat as strictly confidential and only use the other party's Confidential Information solely for the purposes contemplated by this Agreement; and(b)not, without the prior written consent of the Discloser (which may be withheld in that party's absolute discretion), publish, use or otherwise disclose to any person the Confidential Information except for the purposes contemplated, and as permitted, by this Agreement.
13.2. Each party may for the purposes contemplated by this Agreement disclose the other party's Confidential Information (a) to (i) its and its Affiliates' employees, directors, agents and subcontractors; and (ii) its professional advisers, auditors, bankers and insurers, or any persons acting as such; provided that such persons have a need to know in connection with this Agreement and are subject to terms of confidentiality similar to those set forth in this Agreement; or(b)to the extent that it is required to do so at law, pursuant to a court order, order of a government agency regulating the Recipient or rules of a recognised stock exchange, provided that only the minimum amount of information necessary for compliance with the legal requirement or order is disclosed and the Recipient or its Representative promptly prior to disclosure (unless precluded at law or by the order) notifies the Discloser of the intended disclosure under this provision and allows the Discloser the opportunity to defend or attempt to limit the disclosure. - Warranties
14.1. For a period of 30 days following completion of the Training Course, Fluent Commerce warrants that each Training Course will materially comply with its corresponding Training Course Description current as at the date of the relevant Training Course. Fluent Commerce will at its option and as the Training Participant and the Company's sole and exclusive remedy for breach of this warrant either (i) re-supply the affected Training Course (or part thereof) if the Training Course is still available; (ii) supply an alternative Training Course that is materially equivalent (except as to the method or mode of delivery) to the original Training Course, or (iii) where Fees are charged for the Training Course, refund any prepaid Fees corresponding to the affected part of the Training Course, and cancel the Training Participant's registration and access to all Fluent Materials. Notwithstanding, Fluent Commerce does not warrant that the Fluent Materials will be accurate, complete or error free.
14.2. Where any legislation implies into, or where any statutory guarantees apply in respect of the subject matter of, these terms and conditions ("Statutory Guarantee"), and that legislation avoids or prohibits provisions in a contract excluding, limiting or modifying the application of or exercise of or liability, the Statutory Guarantee is be treated as included or applying to this Agreement. However, to the extent the legislation permits liability to be limited, the liability of Fluent Commerce for any breach of Statutory Guarantee is limited to the maximum extent permitted under the legislation.
14.3. EXCEPT FOR THE LIMITED WARRANTIES SET FORTH IN THIS CLAUSE 14, THE FLUENT MATERIALS ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS AND FLUENT COMMERCE PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, THAT THE TRAINING COURSES WILL MEET THE TRAINING PARTICIPANT'S OR THE COMPANY'S REQUIREMENTS (OR THE REQUIREMENTS OF ANY OF ITS AFFILIATES) OR MEET ANY PARTICULAR STANDARD OF ANY KIND OR BE ERROR FREE, COMPLETE OR ACCURATE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND SUBJECT TO CLAUSE 14.2, FLUENT COMMERCE EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE FLUENT MATERIALS AND THE SUBJECT MATTER OF THESE TERMS AND CONDITIONS, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE.
14.4. The Company and the Training Participant warrant that they have not relied upon any representation made by Fluent Commerce which has not been stated expressly in these terms and conditions. - Indemnity
15.1. The Company shall defend and indemnify Fluent Commerce, its Affiliates and licensors and each their respective employees, officers, and directors ("Indemnified Parties") from and against (or at its option settle) any and all costs, damages, losses, liabilities and expenses (including reasonable attorneys' fees and costs) resulting from any third party claims arising from or related to or made in connection with a breach of these terms and conditions, or violations of applicable laws, by Training Participants, LMS Users or the Company its Affiliates or Authorised Users.
15.2. If an Indemnified Party becomes aware of any facts that could give rise to a claim by it under an indemnity given by the Company (the Indemnifying Party) under these terms and conditions, the Indemnified Party shall: (a) promptly notify the Indemnifying Party of the same, together with all relevant facts; (b) allow the Indemnifying Party to have sole and exclusive control of the defence and full conduct of any negotiations and settlement of any matter in respect of which the Indemnifying Party has given an indemnity; and (c) provide the Indemnifying Party with such information and assistance (at the Indemnifying Party's expense) as the Indemnifying Party may reasonably request. - Limitation of Liability
16.1. Neither party will be liable, whether in contract, tort (including negligence), under statute, or otherwise, under or in connection with this Agreement for any indirect, special, punitive or consequential loss, or for any loss of revenue or profits, loss of business, loss of business opportunities, loss of reputation, loss of anticipated savings, loss of goodwill or loss of data.
16.2. Subject to clause 16.1, Fluent Commerce's maximum liability to the Company and its Affiliates and to any Training Participant, collectively, for any and all claims, actions, proceedings, losses, liabilities or costs (including legal expenses) sustained, incurred or suffered by Company and its Affiliates and any Training Participant arising under or in connection with this Agreement, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall be limited in aggregate to an amount equal to the Fees paid to Fluent Commerce for the Training Course in the Registration Form to which these terms and conditions apply.
16.3. The exclusions and limitations in this clause 16 do not apply in the case of: a) fraud or fraudulent misrepresentation; b) death or personal injury caused by negligence; c) the indemnities in clause 15; d) breach of clause 7, clause 12.2 or clause 13; and e) any liability to the extent that the same may not be excluded or limited as a matter of applicable law.
16.4. The limitation and exclusions do not apply to the obligation to pay Fees or other costs and expenses.
16.5. The Company is, at all times, responsible for ensuring that the Training Participant complies with these terms and conditions and is liable to Fluent Commerce for the acts and/or omissions of the Training Participant resulting in a breach by the Training Participant of these terms and conditions, which breaches shall be deemed breaches committed by the Company. - Suspension
17.1. In addition to clause 10.4, Fluent Commerce may at any time restrict or suspend on a temporary or permanent basis the Training Participant's right to access or use any portion or all of the Fluent Materials, and/or to delete the LMS User from the LMS, if Fluent Commerce reasonably determines that: the Training Participant use of the Fluent Materials (i) violates clause 7 or clause 12.2, (ii) creates a security issue or threat to any system or any third party, (iii) violates applicable law or could subject us, our Affiliates, or any third party to liability, or (iv) could be fraudulent. Fluent Commerce will use commercially reasonable efforts under the circumstances to provide you with advance notice (except where a security threat or emergency arises) of any suspension under this clause 17 at any time and, if practicable, an opportunity to cure any breach or violation prior to any such suspension.
17.2. Fees continue to be due and payable in circumstances where Fluent Commerce has validly acted on its suspension rights pursuant to this clause 17. - Force Majeure
18.1. Provided it has complied with clause 18.2, if a party is prevented, hindered or delayed in or from performing any of its obligations under this Agreement (other than failure by Client to pay any fees due to Fluent Commerce) by a Force Majeure Event (Affected Party), the Affected Party shall not be in breach of this Agreement or otherwise liable for any such failure or delay in the performance of such obligations. The time for performance of such obligations shall be extended accordingly.
18.2. The Affected Party shall: (a) as soon as reasonably practicable after the start of the Force Majeure Event, notify the other party in writing of the Force Majeure Event, the date on which it started, its likely or potential duration, and the effect of the Force Majeure Event on its ability to perform any of its obligations under the Agreement; and (b) use all reasonable endeavours to mitigate the effect of the Force Majeure Event on the performance of its obligations.
18.3. If the Force Majeure Event prevents, hinders or delays the Affected Party's performance of its obligations for a continuous period of more than thirty (30) days, the party not affected by the Force Majeure Event may terminate this Agreement by giving seven (7) days' written notice to the Affected Party. - Force Majeure
19.1. Personal Data: refer to Fluent Commerce's privacy policy, a copy if which can be accessed via on its website for mor information about what Personal Data is collected in connection with these terms and conditions and how it is handled.
19.2. Subcontracting: Fluent Commerce may appoint subcontractors in connection with these terms and conditions without consent. Fluent Commerce shall remain liable for any breach of the terms of these terms and conditions by such Subcontractors (subject to the clause 16) and is responsible for payment of its subcontractors.
19.3. Assignment. Except as permitted below, any assignment and/or transfer by the either party of all or part of its rights and/or obligations resulting from this instrument is subject to the other party's prior written agreement, which shall not be unreasonably withheld or delayed. Either party may, without the consent of the other party, assign this contract and/or its rights and/or obligations to (i) any company affiliated to such party's group of companies, or (ii) a third party that has acquired a significant part of such party's (or its Affiliate's) business, assets or undertaking without the consent of the other party. Each party undertakes irrevocably under the terms of this Agreement to sign any document, contract or legal instrument as may be reasonably necessary for that purpose.
19.4. Entire agreement. These terms and conditions are the only terms and conditions that apply to its subject matter and cancel and/or supersede any previous oral or written agreement concerning its purpose and subject matter.
19.5. Variation or Replacement. These terms and conditions may be varied or replaced from time to time by Fluent Commerce, and variation or replacement terms apply to any new Registration Form or the next time a Training Participant access the LMS following the date of variation or replacement.
19.6. No__Waiver. A waiver of any right or remedy under these terms and conditions or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default.
19.7. Severability. If any provision of these terms and conditions comes to be declared null and void or inapplicable, the other provisions of under these terms and conditions will continue to have the same effects as they did previously. The parties shall then undertake to agree on an alternative valid provision of equivalent effect, which reflects their original intention at the time these terms and conditions took effect.
19.8. Notices. Unless expressly stated otherwise herein, any notice, demand, request or delivery required or permitted to be given by a party pursuant to these terms and conditions shall be: (a) if to the Training Participant, to the email address provided, (ii) if to the Company, to the contact details provided in the Registration Form or as otherwise notified to Fluent Commerce in accordance with this clause, and (b) if to Fluent Commerce, to legalnotices@fluentcommerce.com or to any other email address notified by us, with written copies of any legal notices sent to Fluent Commerce, Level 5, 68 Harrington Street, The Rocks, 2000, New South Wales, Australia. Attention: Company Secretary. Notice shall be deemed given (i) when delivered personally, (ii) on the next business day after timely delivery to an overnight courier, (ii) as of the date received via email.
19.9. Governing Law and Jurisdiction: These terms and conditions shall be governed by and construed in accordance with the laws of New South Wales, Australia without regard to any conflict of law provisions and excluding any application of the United Nations Convention on Contracts for the International Sale of Goods. Each party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts of New South Wales and the federal courts of Australia.
