In this Agreement:
“Agent” means Wisenet’s affiliates, contractors, third-party suppliers or any other entity that provides goods or services to Wisenet.
“Authorised User” means persons You have authorised to be Users.
“Back Up” means daily copies of the Data which may be used to restore the lost Data in the event of an error in which Data is destroyed by failures in storage, transmission, processing or other like cause.
“Business Day” means Monday to Friday, excluding National and State Public Holidays, Christmas Day and Boxing Day.
“Business Hours” means 9am to 5pm, Melbourne time, on any Business Day.
“Claim” means, in relation to a person, a claim, demand, remedy, suit, injury, damage, loss, cost, liability, action, proceeding, right of action, claim for compensation or reimbursement or liability incurred by or to be made or received by or against the person.
“Commencement Date” means the date the Proposal/Quotation (Annexure ‘A’) is signed by the customer (You).
“Confidential Information” means all information contained within the Service or provided to You by Wisenet or its Personnel, including but not limited to designs, concepts, product designs (whether registered or not), trade marks, copyright and rights in the nature of copyright, patents, patterns, drawings, models, computer generated designs or images, any rights under licence, know- how, techniques, technical information and technical drawings, any information marked "confidential" or which Wisenet informs You is confidential or a trade secret, details of and information about Wisenet’s intellectual property and any other commercial information about Wisenet or persons with whom Wisenet deals.
“Data” means any data or information input, saved or uploaded into an application by You or with Your authority.
“Defective” in relation to the Service, means that it:
a) does not conform to the Specifications; and/or
b) has a substantially significant error, defect or malfunction which does not conform with the Specifications; and/or
c) otherwise does not comply with the essential requirements of this Agreement.
"Event of Insolvency" means:
a) a "controller" (as defined in section 9 of the Corporations Act 2001 (Cth)), a trustee, administrator or similar officer is appointed in respect of a person or any asset of a person;
b) a liquidator or provisional liquidator is appointed in respect of a corporation;
c) an application (not withdrawn or dismissed within 7 days) is made to a Court of competent jurisdiction for an order, an order is made, a meeting is convened or a resolution is passed, for the purpose of:
i) appointing a receiver, manager, administrator, liquidator or provisional liquidator;
ii) winding up or deregistering a corporation; or
iii) proposing or implementing a scheme of arrangement other than with the prior approval of the Customer under a solvent scheme of arrangement pursuant to Part 5.1 of the Corporations Act 2001 (Cth);
d) any event or conduct occurs which would enable a Court of competent jurisdiction to grant a petition, or an order is made, for the bankruptcy of an individual or his estate under any Insolvency Provision;
e) any application (not withdrawn or dismissed within 7 days) is made to a Court for an order, a meeting is convened, a resolution is passed or any negotiations are commenced, for the purpose of implementing or agreeing:
i) a moratorium of any debts of a person;
ii) a personal insolvency agreement;
iii) any other assignment, composition or arrangement (formal or informal) with a person's creditors; or
iv) any similar proceeding or arrangement by which the assets of a person are subjected conditionally or unconditionally to the control of that person's creditors or a trustee,
f) any agreement or other arrangement of the type referred to in paragraph (e) is ordered, declared or agreed to;
g) a person becomes insolvent under administration within the meaning of the Corporations Act 2001 (Cth);
h) as a result of the operation of section 459F(1) of the Corporations Act
2001 (Cth), a corporation is taken to have failed to comply with a statutory demand (as defined in the Corporations Act 2001 (Cth));
i) any writ of execution, garnishee order, mareva injunction or similar order, attachment, distress or other process is made, levied or issued against or in relation to any asset of a person;
j) the Commissioner of Taxation issues a notice to any creditor of a person under the Taxation Administration Act 1953 (Cth) requiring that creditor to pay any money owing to that person to the Commissioner in respect of any tax or other amount required to be paid by that person to the Commissioner (whether or not due and payable) or the Commissioner advises that creditor that it intends to issue such a notice;
k) anything analogous to anything referred to in paragraphs (a) to (j) (inclusive) of this definition, or which has a substantially similar effect, occurs with respect to a person under any law of any jurisdiction; or
l) a person is, or admits in writing that it is, or is declared to be, or is taken under any applicable law to be (for any purpose), insolvent or unable to pay its debts.
“GST” means the goods and services tax imposed by the A New Tax System (Goods and Services Tax) Act 1999 (Cth) (as amended).
“Insolvency Provision” means any law relating to insolvency, sequestration, liquidation or bankruptcy (including any law relating to the avoidance of conveyances in fraud of creditors or of preferences, and any law under which a liquidator or trustee in bankruptcy may set aside or avoid transactions), and any provision of any agreement, arrangement or scheme, formal or informal, relating to the administration of any of the assets of any person.
“Intellectual Property Rights” includes all present and future rights in relation to copyright, trade marks, designs, patents or other proprietary rights, or any rights to registration of such rights whether created before or after the date of this Agreement, and whether existing in Australia or otherwise.
“Log-In” means the identification and password provided to You by Wisenet as specified in the Specifications or any other identification that Wisenet provides to You in its absolute discretion. Wisenet reserves the right to ask You to reset or alter its Log-in at its absolute discretion.
“Moral Rights” means the moral rights granted under the Copyright Act 1968 (Cth), and any similar rights existing under foreign laws.
"Personnel" of a person means that person's directors, officers, employees, agents, contractors, sub-contractors and their respective personnel.
“Proposal” means the Training Management Proposal/Quotation annexed as Annexure “A” to this Agreement.
“Renewed Term” has the same meaning as set out in clause 2.1.4 of this Agreement.
“Service” means the web-based managed service specified in the Specifications, along with any software, printed media, printed materials and online documentation or Support Services provided by Wisenet in accordance with the Specifications.
“SPAM” has the same meaning given to the term under the Spam Act 2003 (Cth).
"Specifications" means the specifications outlined in this Agreement in conjunction with the Proposal/Quotation (Annexure ‘A’) and Wisenet Implementation Guide.
"Support Services" means the services set out in clause 5 of this Agreement.
“Term” means the term specified on the Proposal/Quotation (Annexure ‘A’).
“User” means any person who uses the Service.
“Subscriptions” means the number of user access seats You have purchased to use the Service as specified in the Specifications.
“Wisenet” means Wisenet - A Division of Adapt IT and/or it’s Agents.
In this Agreement, unless the context otherwise requires:
1.2.1 The "Description" section and headings are for convenience only and do not affect the construction or interpretation of this Agreement;
1.2.2 Words in the singular also include the plural and vice versa;
1.2.3 Words importing a gender include other genders;
1.2.4 A reference to a "person" includes an individual, the estate of an individual, a corporation, an authority, an association or a joint venture (whether incorporated or unincorporated), a partnership and a trust;
1.2.5 If a word or phrase is given a defined meaning, any other part of speech or grammatical form of that word or phrase has a corresponding meaning;
1.2.6 "includes" in any form is not a word of limitation; and
1.2.7 A reference to "$" or "dollar" is to Australian currency and an obligation to pay money is an obligation to pay in Australian dollars.