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Part A Terms and Conditions

Governing law
The law in force in New South Wales governs this agreement and its interpretation.

Submission to jurisdiction
You and HCM Global submit to the jurisdiction of the courts of New South Wales.

Dictionary
"HCM Global material" means any material that HCM Global owns and that comes into the possession of the Client.

"confidential information"
means any unique and exclusive information or material relating to the administration, operation, methods, processes, systems and techniques developed, owned or used by HCM Global.

"existing material"
means any unique and exclusive information or material relating to the administration, operation, methods, processes, systems and techniques developed, owned or used by you, but does not include HCM Global confidential information.

"intellectual property rights"
includes copyright, trade mark, design, patent semiconductor or circuit layout rights, trade, business or company names, trade secrets, confidential or other proprietary rights, or any rights to registration of these rights, whether created before or after the date of this agreement, and whether existing in Australia or somewhere else.

"material"
includes, but is not limited to, documents, software and data.

"new material"
means any material that you (or someone else on your behalf) create, write or bring into existence while HCM Global are performing services for you and which relates to your contract with HCM Global , but it does not include existing material.

"services"
means any services HCM Global or its staff perform for you.

"staff"
means HCM Global's employees or sub-contractors.

"you"
means you, your employees or sub-contractors.

Services to be provided by HCM Global

Engagement
HCM Global shall provide services as specified within the HCM Global proposal submitted to you and accepted by you in writing or by the commencement of the delivery of the services to you.

Independent contractors
You accept that HCM Global may provide its services using independent contractors working on behalf of HCM Global and under its direction pursuant to the terms of this contract and strictly in accordance with HCM Global's procedures and methods.  You shall not independently use any of HCM Global's contractors who have provided services pursuant to this contract for a period of 18 month's after completion of our contract without the express consent of HCM Global.  If you breach this provision you shall pay HCM Global the same amount as has been paid by you to the contractor and shall make full disclosure of that amount to HCM Global on demand.

No authority
You may not:
* enter any contract;
* make any representation or commitment; or
* create any express or implied obligation on behalf of HCM Global;
unless authorised to do so by this agreement or by HCM Global in writing.

Responsibility to your staff
You alone are responsible for the remuneration, compensation and any other payments owing to your staff.  HCM Global has no financial obligations to them.

Responsibility for your expenses
You alone are responsible for your business expenses, including any type of tax and insurance liability.

No conflict of interest
You guarantee to HCM Global that no conflict of interests exists, and that none is likely to arise, in performing this agreement.  You promise to tell HCM Global, in writing, if a conflict of interest does arise while this agreement is in force.

Intellectual property
You warrant to HCM Global that neither you nor your staff will infringe intellectual property rights belonging to HCM Global, or to anyone else, relevant to the services provided pursuant to this contract.

HCM Global material
HCM Global exclusively owns the HCM Global material, and the intellectual property in its material.
When you use HCM Global material or you acknowledge HCM Global copyright and ownership of the material.
You must not use HCM Global material, or show HCM Global material to another party, except with the written consent of HCM Global.

New material
You agree that HCM Global owns the new material and the intellectual property in the new material that is created in the course of providing the services pursuant to this contract.
By accepting this agreement, you irrevocably assign to HCM Global all the intellectual property rights you obtain or create from the new material, both now and in the future.

Existing material
If you revise, or adapt, or customise your existing material, you will continue to own it, and the intellectual property in it.
You warrant to HCM Global that, if you make available your existing material to HCM Global, nothing HCM Global does with the existing material under this agreement will infringe intellectual property rights belonging to anyone else.
By signing this agreement, you give to HCM Global a non-exclusive, non-transferable licence to use copy and adapt the existing material for its own use, but only as part of the new material.

Confidentiality

Background
It is possible that you and your staff may create confidential information for HCM Global, or may become aware of confidential information that HCM Global owns or possesses.  If you or your staff use or disclose that information improperly, this could severely damage HCM Global.

Confidentiality
You must not make public, or give to anyone, any information about this agreement, or any confidential information, unless HCM Global has agreed to this in advance.
You must also do everything reasonable to make sure that your staff, agents and sub-contractors do not make public, or give to anyone, any information about this agreement, or any confidential information, unless HCM Global has agreed to this in writing.

Returning confidential information to HCM Global
If HCM Global asks you to return to HCM Global any of the documents you possess or control that contain confidential information, you must do so.  If the confidential information is not in your possession or control, you promise to tell HCM Global where it is and use all reasonable endeavours to have the confidential information returned to HCM Global.

Administration and payment

Basis of payment
You will pay to HCM Global all fees and expenses set out in the proposal within fourteen (14) days of a tax invoice being delivered to you.
For every day after the fees and expensed fall due you shall be liable to pay HCM Global interest at the rate of ten per centum (10%) per annum calculated on daily rests until the date of payment of the fees and expenses in full.

Mistakes
If there is a mistake in your invoice, and as a result HCM Global is underpaid by you, you promise to pay HCM Global the correct amount.
Similarly, if there is a mistake in your invoice, and as a result HCM Global is overpaid, HCM Global promises to refund the overpayment to you.

Cancellation by you
If you cancel any service, or any other engagement that you have agreed to, then:
* If you cancel more than twentyeight (28) working days (inclusive) before the date of the service or engagement, you do not have to pay anything.
* If you cancel less than twentyeight (28) working days but more than fourteen (14) working days before the date of the service or engagement, you will pay 50% of the fee for the cancelled of the service or engagement to HCM Global.
* If you cancel less than fourteen (14) working days before the date of the service or engagement, you will pay the full fee for the cancelled of the service or engagement to HCM Global.

If HCM Global cancel
If HCM Global is unable to conduct any service or engagement for you due to circumstances beyond its control then it will reschedule the provision of the agreed service or engagement to a mutually agreed time.  In such event you shall not be entitled to claim damages from HCM Global.

If your staff are not available
If our fee for service is based on the number of attendees and less than that number attend the service or engagement HCM Global shall still be entitled to full payment for all the proposed attendees unless you have advised HCM Global of the variation in numbers at least twenty (20) working days before the service or engagement.

Insurance
You agree to arrange the following insurance policies with a reputable insurer, and to keep them current while this agreement is in force:
* public liability cover for at least $10 million for each event; and
* worker's compensation insurance as required by law; and
* professional indemnity insurance; and
* any other insurance required by law.
If HCM Global asks you to do so, you must provide proof that you have arranged these insurance policies, and that they are current.

Indemnities
You agree to indemnify HCM Global
You agree to indemnify HCM Global and its officers, staff and agents, against any liability, loss or damage, including legal expenses arising out of any claim by any person, as long as:
* it arose in connection with this agreement; and
* an intentional, or unlawful, or negligent act or omission by you, or by your staff, or by someone else for whom you are responsible, caused it.
You also agree to indemnify HCM Global , and its officers, staff and agents, against any liability, loss or damage, including legal expenses arising out of any claim by any person, as long as:
* it arose out of an infringement or alleged infringement of someone's intellectual property rights; and
* it occurred because of something you did with the material or new material under this agreement; and
* the infringement does not relate to some change that HCM Global made to the material or new material.

Disputes


Good faith
You and HCM Global agree to act in good faith with each other.

Dispute resolution
Either you or HCM Global may give notice in writing that you are in dispute. If you and HCM Global have not settled any dispute within seven (7) days of that written notice, you and HCM Global must refer the dispute to a mediator.
If you and HCM Global cannot agree on a mediator either party may:
* refer the dispute to Lawyers Engaged in Alternative Dispute Resolution (LEADR); and
* ask the Chair of LEADR to appoint a mediator in accordance with the mediation rules of the Law Society of New South Wales.

Acts or events beyond reasonable control
HCM Global is not bound to perform this agreement if it is impossible to do so because of events beyond its control that it could not have reasonably foreseen when it made this agreement.
HCM Global may end this agreement by notice in writing, if an event just mentioned prevents it performing any service or engagement for you.  If this happens, it is not a breach of this agreement, and you will not have any right to claim damages for the agreement ending in this way.

Ending this agreement
If you break this agreement
If you break any term of this agreement whether fundamental or not, HCM Global may end this agreement by giving you notice in writing.  If HCM Global does this, HCM Global may still enforce any other rights or remedies HCM Global may have against you.

Legal action
You acknowledge that HCM Global may take legal action against you, or against anyone else, if there is any actual, threatened or suspected breach of this agreement.  That legal action may involve proceedings for an injunction to stop the breach, and for damages and compensation for any expenses and losses.

No compensation
You are not entitled to any compensation for loss if HCM Global ends this agreement early, even if you were not in any way at fault in carrying out your obligations.

After this agreement ends
As soon as this agreement ends, you must:
* stop using any of the HCM Global materials, trade marks and logos of HCM Global;
* return all documents (including the HCM Global materials) to HCM Global;
This applies regardless of whether you or HCM Global ended this agreement.

Payment for services
50% of the total service fee is payable to HCM Global at the time of making any booking by the client.  The balance of payment by the client to HCM Global for any service delivered is payable on the day of delivery of that service.

 

Part B Terms and Conditions (Just-in-Time Learning Programs)


AGREEMENT BETWEEN YOU AND HCM GLOBAL PTY LTD (HCMG)

1.    Introduction
This Agreement between you and HCMG consists of these Standard Terms and Conditions ("Terms and Conditions"), and the Just-in-Time Learning Program (the "Service") or "JITL.

HCM Global Pty Ltd (HCMG) is the owner of the Just-in-Time Learning Program (JITL) and access to, and use of JITL and associated systems is conditional upon your acceptance and compliance with the terms, conditions, notices and disclaimers contained in this document and elsewhere in any document produced in electronic or other written form as a result or your use of JITL.

Your use of, and /or access to the JITL constitutes your agreement to the Terms and Conditions. HCMG reserves the right to amend the Terms and Conditions at any time. As you are bound by these Terms and Conditions, you should periodically refer to them. If you do not agree to be bound by these Terms, you will not be entitled to access JITL (Just-in-Time Learning Program). Your continued use of JITL constitutes your agreement to be bound by these Terms. "You" means any entity identified in any agreement by the same or affiliated persons, and/or any agency acting on its (or their) behalf, which shall also be bound by the terms and conditions.

Description Of Service
HCMG provides you with the ability to access the JITL online or in a workshop format. Unless explicitly stated otherwise, any new features that augment or enhance the current Service, shall be subject to the Terms and Conditions. You are responsible for obtaining access to the Service and that access may involve third party fees (such as Internet service provider or airtime charges). You are responsible for any such fees. In addition, you must provide and are responsible for all equipment necessary to access the Service.

HCMG reserves the right to, and in its sole discretion may, at any time review, reject, modify, or remove any information that does not comply with any policy of HCMG as documented in these conditions. No liability of HCMG shall result from any such decision.

All fees quoted for access to JITL are provided on a 'per-licence basis.

2.    Communications Solely With HCMG
You agree to direct to HCMG any communication regarding JITL.
3.    Content
You understand and acknowledge that all information, data, text, software, music, sound, photographs, graphics, video, messages, hyperlinks or other materials (the "Content"), that you and your participants incorporate within JITL associated responses, is your sole responsibility. HCMG does not control such Content, and does not guarantee the accuracy, integrity or quality of such Content. Under no circumstances will HCMG be liable in any way for any Content, including, but not limited to, any errors or omissions in any Content, or any loss or damage of any kind incurred as a result of the use of any Content posted, emailed, transmitted or otherwise made available via the Service.

JITL structure and methodology information, text, material, graphics, software and advertisements on Site are Copyright to HCMG, its suppliers and/or licensors unless elsewhere expressly indicated otherwise. The content is protected by Australian and international copyright and trademark laws. Content is published in real time and you must not modify, copy, reproduce, republish, frame upload to a third party, post transmit or distribute this content in any way except as expressly provided for by HCMG or expressly authorised in writing by HCMG. You understand and agree that you must keep all content intact and in the same form as presented on the proprietary notices and all advertisements. You must not use JITL in any manner or for any purpose which is unlawful or in any manner which violates any right of HCMG or which is prohibited by the Terms and Conditions.

You acknowledge that HCMG does not pre-screen participants, content, but that HCMG shall have the right, but not the obligation, in its sole discretion to refuse or remove any Content that is available via the Service. Without limiting the foregoing, HCMG shall have the right to remove any Content that violates the Terms and Conditions or is otherwise objectionable. You agree that you must evaluate and bear all risks associated with the provision of any Content.

You acknowledge and agree that HCMG may preserve Content and may also disclose Content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to:

1.    comply with legal process
2.    enforce the Terms and Conditions
3.    respond to claims that any Content violates the rights of third-parties
4.    protect the rights, property, or personal safety of HCMG, its users and the public.

4.    Upgrades
During the Service Term, HCMG reserves the right to upgrade the Service and System. You acknowledge that such upgrades may require additional training of your employees accessing the Service and the System and may result in a change in the branding of the Service and System. HCMG agrees to use commercially reasonable efforts to provide such upgrades where possible, without any material disruption to you. HCMG makes no representations or warranties with respect to the availability of any future modifications, updates, or enhancements to the Service or System. Similarly, HCMG makes no representations with respect to any new product offerings it may make in the future, the compatibility of such products with the Service or System as set forth in this Agreement, or the availability of such new products or versions to you. You acknowledge and agree that all Service and System enhancements, results and modifications made to the Service or System as a result of any joint collaboration between you and HCMG shall belong to HCMG.

5.    Prohibited Uses
HCMG strictly prohibits using the JITL tool to generate responses (i) with content that is illegal in any state or country where the JITL is displayed; (ii) in any way that violates any policy posted on the JITL or HCM Global Website, as revised from time to time; or (iii) to engage in any other illegal or fraudulent business practice under the laws of any state or country where JITL is displayed. You may not include links to any Website(s) as part of your response with content that is illegal in any state or country where the survey is displayed. Violation of these policies may result in immediate termination of this Agreement, and may subject you to state and federal penalties and other legal consequences.

6.    Account, Password and Security
During the JITL registration process, your account will be created using a unique user name and a secret password for each agreed user. You are responsible for maintaining the confidentiality of your password, and are fully responsible for all activities that occur under your account. You agree to:

a)    immediately notify JITL of any unauthorised use of your password or account or any other breach of security
b)    ensure that you exit (log out) from your account at the end of each session.

HCMG cannot and will not be liable for any loss or damage arising from your failure to comply with this Section 7.

7.    Termination, Cancellation.
You agree that HCMG, at its sole discretion and without prior notification, may terminate this agreement with you and access to the Service for reasons of non-payment of fees or if HCMG believes that you have violated or acted inconsistently with the Terms of Use. HCMG will notify you via email of any such termination or cancellation, which shall be effective immediately. You may terminate this Agreement with or without cause at any time, by sending written notification by registered post to JITL giving ninety (90) days' notice of the desired termination date. Upon cancellation/termination of this Agreement for any reason, (i) you shall remain liable for the full cost of the JITL license fee for the agreed contract period as described in the agreement form signed by you or your agent - no refunds are given, and (ii) Sections 2, 3, 6-14 and 16-19 shall survive termination. Upon receipt of a cancellation instruction or at the conclusion of the paid licence term, HCMG will close your account and access to JITL immediately, unless otherwise agreed in writing.

8.    Confidentiality
Each party agrees not to disclose confidential information of the other party without prior written consent except as provided herein. "Confidential Information" includes: (i) submissions or modifications relating to JITL (ii) any other information designated in writing as "Confidential." It does not include information that has become publicly known through no breach by a party, or has been (i) independently developed without access to the other party's Confidential Information; (ii) rightfully received from a third party; or (iii) required to be disclosed, either by law or by a governmental authority.

9.    No Guarantee
HCMG makes no guarantee regarding the response rates for the JITL program.

10.    No Warranty
HCMG MAKES NO WARRANTY, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION WITH RESPECT TO JITL SERVICES, AND EXPRESSLY DISCLAIMS THE WARRANTIES OR CONDITIONS OF NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE.

11.    Limitations of Liability
In no event shall HCMG be liable for any act or omission, or any event directly or indirectly resulting from any act or omission of HCMG or any third parties (if any). EXCEPT FOR THE PARTIES' INDEMNIFICATION AND CONFIDENTIALITY OBLIGATIONS HEREUNDER, (i) IN NO EVENT SHALL EITHER PARTY BE LIABLE UNDER THIS AGREEMENT FOR ANY CONSEQUENTIAL, SPECIAL, INDIRECT, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER IN CONTRACT, TORT OR ANY OTHER LEGAL THEORY, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY and (ii) HCMG'S AGGREGATE LIABILITY TO YOU UNDER THIS AGREEMENT FOR ANY CLAIM IS LIMITED TO THE AMOUNT PAID TO HCMG BY YOU FOR THE SERVICE GIVING RISE TO THE CLAIM. Each party acknowledges that the other party has entered into this Agreement relying on the limitations of liability stated herein and that those limitations are an essential basis of the bargain between the parties. Without limiting the foregoing and except for payment obligations, neither party shall have any liability for any failure or delay resulting from any condition beyond the reasonable control of such party, including but not limited to governmental action or acts of terrorism, earthquake or other acts of God, labour conditions, and power failures.

12.    Representations and Warranties
You represent and warrant that (a) all of the information provided by you to HCMG is correct and current; any site(s) linked to, and products or services to which users are directed, will not, in any state or country where the information is displayed (i) violate any criminal laws or third party rights giving rise to civil liability, including but not limited to trademark rights or rights relating to the performance of music; or (ii) encourage conduct that would violate any criminal or civil law.

You further represent and warrant that any Web site linked to you (i) complies with all laws and regulations in any state or country where JITL is displayed; (ii) does not breach and has not breached any duty toward or rights of any person or entity including, without limitation, rights of publicity or privacy, or rights or duties under consumer protection, product liability, tort, or contract theories; and (iii) is not false, misleading, defamatory, libellous, slanderous or threatening.

13.    Your Obligation to Indemnify
You agree to indemnify, defend and hold HCMG, its agents, affiliates, subsidiaries, directors, officers, employees, technology partners and applicable third parties (e.g., all relevant Partner(s), licensors, licensees, consultants and contractors) ("Indemnified Person(s)") harmless from and against any and all third party claims, liability, loss, and expense (including damage awards, settlement amounts, and reasonable legal fees), brought against any Indemnified Person(s), arising out of, related to, or which may arise from your use of the Service, your Website, and/or your breach of any term of this Agreement. You understand and agree that each Partner, as defined herein, has the right to assert and enforce their/its rights under this Section directly on their/its own behalf as a third party beneficiary.

14.    Term
Unless terminated earlier, in accordance with the termination rights set forth in this Agreement, the term of this Agreement shall be for a period of twelve (12) months from the licence commencement date (the "Term").

Furthermore, unless terminated by either party upon ninety (90) days' notice prior to the end of the initial term or any renewal term, the Agreement shall automatically renew for successive one-year terms up to a maximum period of three (3) years from the licence commencement date.

15.    Payment
You agree to pay all applicable charges, including any applicable taxes or charges imposed by any government entity, at the times and in the manner set out in the attached documents and that HCMG may change its pricing at any time, with prior information.

All fees hereunder shall be denominated in Australian Dollars (unless otherwise stated) and paid by company cheque, direct transfer, or by other means expressly agreed to in writing by HCMG. You shall also be responsible for and shall pay any applicable sales, use or other taxes or duties, tariffs or any other additional sums whether levied on this Agreement or on the provision of the Service and all such payments shall be made without deduction for withholding taxes.

All amounts payable by you shall be paid within seven (7) days of the invoice date. Payment is due in advance of use of the JITL Service. Late payment shall constitute a default and you shall pay default interest on overdue amounts from the date payment falls due to the date of the payment at a default rate of five (5) per cent of the total cost of the invoice per week (7 days) overdue.

If you dispute any charge made under the Agreement, you must notify HCMG in writing within thirty (30) days of any such charge; failure to so notify HCMG shall result in the waiver by you of any claim relating to any such disputed charge. Charges shall be calculated solely based on records maintained by HCMG. No other measurements or statistics of any kind shall be accepted by HCMG or have any effect under this Agreement.

16.    International Use
HCMG is a proprietary company registered in New South Wales, Australia, and this agreement is subject to the laws of that State.

However, recognising the global nature of the Internet, you also agree to comply with all local rules, regulations and laws, applicable to your jurisdiction AND the jurisdiction of your participants, regarding your Conduct and acceptable Content.

Should these Terms be read in any language other than English, HCMG does not warrant the accuracy of translation from English. If any differences of interpretation arise, the content of the English version shall prevail.

17.    HCMG's Proprietary Rights
You acknowledge and agree that the Service contains proprietary and confidential information that is protected by applicable intellectual property and other laws. Except as expressly authorised in writing by HCMG, you agree not to modify, rent, lease, loan, sell, distribute or create derivative works based on the Service, in whole or in part. You agree not to access the Service by any means other than through the interface that is provided by HCMG for use in accessing the Service.

18.    Miscellaneous
Any decision made by HCMG under this Agreement shall be final. You will be responsible for all reasonable expenses (including attorneys' fees) incurred by HCMG in collecting unpaid amounts under this Agreement. This Agreement shall be governed by the laws of NSW, Australia.

Any dispute or claim arising out of, or in connection with, this Agreement shall be adjudicated in NSW, Australia. This constitutes the entire agreement between the parties with respect to the subject matter hereof. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of, or related to, use of the Service or the Terms must be filed within six (6) months after such claim or cause of action arose or be forever barred.

Any modifications to this Agreement must be made in writing and executed by both parties. The waiver of any breach or default of this Agreement will not constitute a waiver of any subsequent breach or default. If any provision herein is held unenforceable, then such provision will be modified to reflect the parties' intention, and the remaining provisions of this Agreement will remain in full force and effect.

You may not resell, assign, or transfer any of your rights hereunder. Any such attempt may result in termination of this Agreement, without liability to HCMG.

The section titles in the Terms are for convenience only and have no legal or contractual effect.
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