Epsilon Account Agreement for RTOs€¦ · Web viewwhere a word or phrase is given a particular meaning, other parts of speech and grammatical forms of that word or phrase have

Epsilon – Apprenticeship and Traineeship Contract Registration SystemRTO account agreementAugust 2019

Parties

Name The State of Victoria through the Victorian Registration and Qualifications Authority

Address Level 4, Casselden, 2 Lonsdale Street, Melbourne VIC 3000

Email [email protected]

Contact Apprenticeships Administration Unit

Short name VRQA

and

RTO Name

Address

Email

Contact

Short name Organisation

Epsilon RTO account agreement – August 2019 1

mailto:[email protected]

Signing page

Executed by the Organisation as an agreement.

Signed by and on behalf, and with the authority, of

…………………………………………………................... (insert name of the Organisation)

by

…………………………………………………................... (insert name of the authorised person):

…………………………………………………...................

Signature

Dated: / /2019


Background

A. The VRQA is a statutory body established under Chapter 4 of the Education and Training Reform Act 2006 (Vic) (Act) whose functions includes the registration and regulation of apprenticeships and traineeships.

B. The Higher Education and Skills Group Service Agreement between the Organisation and the VRQA sets out the Organisation’s reporting requirements as required by the VRQA pursuant to the Act.

C. The Epsilon Apprenticeship and Traineeship Contract Registration System (System), replacing the Direct Entry Level Training Administration (DELTA) Apprenticeship Database, has been provided by the VRQA to assist in fulfilling the Organisation’s apprenticeship and traineeship registration and reporting requirements pursuant to the Act and/or under any agreement entered into pursuant to the Act (Purpose).

D. The Organisation wishes to enter into this Agreement in order to enable it and its Authorised User to access and use the System for the Purpose.

1. Term

The Agreement commences on the earlier of:

1.1 execution of this Agreement by the Organisation; and

1.2 the Organisation or an Authorised User accesses the System for the first time, (Commencement Date),

and continues until this Agreement is terminated in accordance with clause 10.

2. Acknowledgement

The Organisation acknowledges that the System is provided and used by the VRQA as a register of apprentices and trainees in accordance with the Act, and the Organisation agrees:

2.1 to not do or fail to do anything that would cause the VRQA to fail to comply with the Act; and

2.2 to promptly notify the VRQA of anything reasonably likely to adversely affect the Organisation’s performance of any of its obligations under this Agreement

3. Access

3.1 Access to the System3.1.1 On and from the Commencement Date and for the Term, the VRQA provides access to the System

to the Organisation and Authorised Users solely for the Purpose on the terms and subject to the conditions of this Agreement.

3.1.2 By accessing and using the System or otherwise receiving the Services, the Organisation is deemed to have agreed to the terms of the Agreement.

3.2 Access by Authorised Users3.2.1 Upon receiving from the Organisation details of a person nominated as an Authorised User of the

Organisation, the VRQA will issue a user name and password for the Authorised User to access and use the System for the Purpose.

3.2.2 An Authorised User must be an employee, officer or contractor of the Organisation.

3.2.3 The Organisation may request in writing at any time that the VRQA removes an Authorised User’s access to the System. Upon removal, the specified user will no longer be an ‘Authorised User’ for the purposes of the Agreement.

3.2.4 If an Authorised User is removed in accordance with clause 3.2.3, the Organisation must ensure (in addition to any other obligations imposed under this Agreement) that the specified person immediately cease using the System.


3.2.5 It is the Organisation’s responsibility to ensure that an Authorised User has access to the System for the Purpose during the Term.

3.2.6 The Organisation must procure that Authorised Users enter into an end user licence agreement with the VRQA prior to accessing the System.

3.3 Conditions on access3.3.1 The Organisation acknowledges and agrees that the System may only be accessed and used by

the Organisation and/or its Authorised Users for the Purpose.

3.3.2 The Organisation and any Authorised Users must not:

(a) resell, access or use the System for any external commercial purpose (for example, offering bureau or outsourcing services); or

(b) display, disclose, sell, resell, transfer, licence, rent access to, lease, loan, provide or distribute all or any portion of the System.

3.3.3 The Organisation must only access and use the System in accordance with the Documentation and any normal operating procedures notified to the Organisation by the VRQA.

3.3.4 The System must only be accessed and used via the equipment and hardware that meet the relevant operational requirements specified by the VRQA and/or any third party suppliers from time to time. If the Organisation and/or its Authorised User access and use the System via any other equipment or hardware, the Organisation may experience reduced or no functionality and the Organisation will be using such alternative equipment or hardware at its sole risk.

3.3.5 There is no transfer of title or ownership to the Organisation of the System, Software or any modifications, updates or new releases of the System or Software.

3.3.6 The Organisation is responsible for the acts or omissions of its Authorised Users.

3.3.7 The Organisation must procure that its Authorised Users comply with the terms of the Agreement as if those Authorised Users were the Organisation under the Agreement.

3.3.8 The Organisation must not attempt to copy, modify, translate, reproduce, alter, create any derivative work of or otherwise customise the Organisation’s access to and use of the System.

3.3.9 Other than and only to the extent expressly permitted by Law in any way which may not be agreed to the contrary, the Organisation must not, and must ensure that its Authorised Users do not, attempt to reverse assemble, reverse compile or otherwise attempt to gain access to the source code of all or any portion of the Software, or directly or indirectly allow or cause any Authorised User or a third party to do any of those things, for example by trying to bypass any security measures.

3.3.10 The Organisation must fully cooperate and comply with all directions of the VRQA to do or refrain from doing an action in the performance of the Agreement.

3.4 Restrictions on UseWhile using the System, the Organisation and all Authorised Users must not:

3.4.1 do or omit to do anything that may:

(a) damage, bring into disrepute or ridicule the VRQA's or the State's name, messages or reputation; or

(b) attract public or media attention which may be prejudicial or otherwise detrimental to the VRQA’s or the State's name, messages or reputation;

3.4.2 post, distribute, upload, publish or disseminate any illegal, discriminatory, threatening, defamatory or offensive content;

3.4.3 post spam, unsolicited or bulk electronic communications, chain letters or pyramid schemes;

3.4.4 use the System in any manner which might damage, disable, overburden, or impair the System or interfere with any user’s use and enjoyment of the System such as a denial of service attack;


3.4.5 fail to comply with all applicable Laws, rules and regulations including without limitation, Laws relating to copyright;

3.4.6 engage in any conduct which may infringe any third party’s rights, including Intellectual Property Rights;

3.4.7 display, disclose, sell, transfer, licence, rent, lease, loan, provide or distribute all or any portion of the Software or the System to any third party;

3.4.8 un-bundle any components of the System or Software (unless and only to the extent expressly permitted by law in a way which may not be agreed to the contrary); or

3.4.9 use the System in a way which contravenes any acceptable use policy which VRQA may publish from time to time.

3.5 Multi supplier environment and connectivityThe Organisation acknowledges and agrees that:

3.5.1 the System is developed and hosted by third party suppliers using third party software and data sources, and the Organisation’s and any Authorised User's access to and use of the System will therefore be subject to the inherent limitations of a multi supplier environment and the technical and operational performance and characteristics of the third party suppliers; and

3.5.2 the Organisation’s and any Authorised User's access to and use of the System is dependent on having an appropriate connection to the System, via the internet or other network connections.

3.6 Third party content and dataWhile the VRQA has endeavoured to ensure the accuracy of content and data made available via the System, the Organisation acknowledges and agrees that:

3.6.1 the VRQA obtains content and data that is made available via the System from a number of third party data sources (Data Sources);

3.6.2 any content and data made available by Data Sources may be subject to or licensed under separate terms and conditions imposed by the relevant Data Sources (Data Source Terms);

3.6.3 it is the responsibility of the Organisation to ensure that it and its Authorised User are aware of and comply with any Data Source Terms;

3.6.4 the VRQA does not independently ensure the currency, accuracy, authenticity, completeness or fitness for any particular purpose of any content and data made available via the System, or that it is without errors or faults;

3.6.5 the VRQA does not make any representations or warranties (express or implied) as to the accuracy, authenticity, completeness or fitness for any particular purpose of such content and data made available via the System;

3.6.6 access by the Organisation and/or its Authorised User to any content and data made available via the System is at the Organisation’s risk and the Organisation is solely responsible for any damage or Loss to the Organisation, any Authorised User or any other party arising from such access; and

3.7 the VRQA is under no duty to monitor, edit or remove any content or data made available via the System which originates from Data Sources.

3.8 Access and use of the System is granted solely for the Purpose.

3.9 Users must not access and/or use the System to engage in a personal business enterprise, political activity, intelligence gathering, fraudulent activities, illegal business practices, gambling, harassment or discrimination, infringement of property rights, the knowing dissemination of false material or any other unlawful activity.


4. System security

4.1 The Organisation must not, and must ensure that its Authorised User does not, introduce (or seek to introduce) any Virus into the Software, the System or associated systems.

4.2 The Organisation must effect and maintain appropriate anti-virus protection on the Organisation’s equipment and devices, in accordance with good industry practice.

4.3 The Organisation is solely responsible for:

4.3.1 the security of its access to and use of the System, including the confidentiality of the user name and password of any Authorised Users; and

4.3.2 the due supervision of the Authorised Users (regardless of where they are located).

4.4 The Organisation must ensure that the System and all Data and content made available to the Organisation and its Authorised Users and under the Agreement are protected at all times from misuse or unauthorised use or access, including by the Authorised Users.

4.5 The Organisation must comply with all reasonable directions of the VRQA regarding the security of the System or a Data Source.

4.6 To the maximum extent permitted by law, the Organisation indemnifies the VRQA from and against any Losses, costs, expenses, demands or liability that the VRQA may incur, suffer or become liable for arising (directly or indirectly) from or in connection with the Organisation’s failure to comply with this clause 4.

5. Privacy and Data security

5.1 Information PrivacyThe Organisation:

5.1.1 acknowledges that it will be bound by the Information Privacy Principles and any applicable Code of Practice with respect to any act done or practice engaged in by the Organisation and its Authorised Users under or in connection with this Agreement in the same way and to the same extent as the VRQA would have been bound had it been directly done or engaged in by the VRQA.

5.1.2 must only use Personal Information for the purposes of fulfilling the Organisation's obligations under the Agreement and must not disclose Personal Information without the VRQA’s written authority except for the purpose of fulfilling the VRQA's obligations under the Agreement where such use or disclosure was notified to the individual when that Personal Information was collected;

5.1.3 must immediately notify the VRQA where it becomes aware of a breach of this clause 5.1 by the Organisation, its employees, or agents; and

5.1.4 must indemnify and keep indemnified and hold harmless the VRQA and its employees against any liability incurred or Loss or damage suffered by the VRQA or its employees arising out of or in connection with a breach of this clause 5.1 by the Organisation, its employees, or agents. The Organisation's indemnity shall be proportionally reduced to the extent that any wrongful act or omission of the VRQA, its employees or agent directly contributed to such failure or Loss or liability.

5.2 Data Security

5.2.1 The Organisation:

(a) acknowledges that the VRQA is an organisation to which Part 4 of the Privacy and Data Protection Act 2014 (Vic) applies (including the Victorian Protective Data Security Framework and the Victorian Protective Data Security Standards); and

(b) agrees that, on and from the Commencement Date, and for the duration of the Term:


(i) it will comply with all directions of the VRQA in respect of data security arrangements; and

(ii) will not do or fail to do anything that would cause the VRQA to fail to comply with its obligations in respect of data security under the Privacy and Data Protection Act 2014 (Vic).

5.2.2 Without limiting any more stringent requirements imposed under clause 5.2.1(b) the Organisation must:

(a) only use the Data for the Purpose;

(b) ensure the security of records created, held or maintained in connection with this Agreement in accordance with standards issued under the Public Records Act 1973 (Vic);

(c) ensure that the Data held by the Organisation is protected against misuse and loss and from unauthorised access, modification, copying, use and disclosure;

(d) notify the VRQA immediately when a government agency has requested access to Data;

(e) ensure that the Data is stored or recorded accurately each time the Data is accessed by any person; and

(f) notify the VRQA immediately if the Organisation becomes aware of any contravention of this clause 5.2.2 and comply with all related directions of the VRQA.

5.3 Eligible Data Breach5.3.1 For the purpose of this clause 5.3, ‘Eligible Data Breach’ has the meaning given in the Privacy Act

1988 (Cth).

5.3.2 The Organisation must:

(a) report to the VRQA, as soon as possible, but within 4 hours of becoming aware of any actual, potential or threatened Eligible Data Breach or any other breach of this clause 5; and

(b) Co-operate in any investigation that may be undertaken by the VRQA or other relevant authority, including providing all necessary information, and access to its systems if directed to do so.

6. Confidentiality

6.1 Unless required otherwise by law, or if the VRQA gives prior written approval, the Organisation must:

6.1.1 keep confidential;

6.1.2 maintain proper and secure custody of; and

6.1.3 not reproduce or disseminate in any form,

the Confidential Information except to the extent required by law.

6.2 The Organisation must take all reasonable steps to ensure that the Authorised Users, its employees and agents, and any sub-contractors engaged for the purposes of the Agreement, do not make public or disclose the Confidential Information.

6.3 Within 3 Business Days of termination of the Agreement or upon receipt of a written request from the VRQA to do so, the Organisation must:

6.3.1 with respect to Confidential Information incorporated into Data, comply with clause 11; and

6.3.2 with respect to Confidential Information incorporated into any medium other than Data, return to the VRQA all Confidential Information provided to or obtained or accessed by the Organisation under the Agreement if requested by the VRQA,

and confirm in writing to the VRQA that it has done so.


6.4 The Organisation hereby consents to the VRQA publishing or otherwise making available information in relation to the Organisation and the Agreement as may be required:

6.4.1 by the Auditor-General; or

6.4.2 otherwise by law.

6.5 The Organisation's obligations under this clause 6 will survive the suspension, frustration, repudiation, or termination of the Agreement.

7. Intellectual Property

7.1 Acknowledgement by the Organisation

7.1.1 The Organisation acknowledges and agrees that:

(a) the VRQA owns the Data, including all Intellectual Property Rights in the Data, and these ownership rights vest in the VRQA upon creation of the Data; and

(b) any rights not expressly granted to the Organisation under this Agreement are reserved to the VRQA and its licensors, third party suppliers or Data Sources in respect of all rights, title and interest.

7.1.2 To the extent necessary to give effect to clause 7.1.1(a), the Organisation assigns to the VRQA all of its rights, title and interest in the Data;

7.2 Restriction on use7.2.1 The Organisation must not use any of the VRQA’s Intellectual Property Rights in any manner not

expressly authorised by the VRQA.

7.2.2 The Organisation must notify the VRQA as soon as practicable if it becomes, or reasonably ought to become, aware:

(a) of an infringement of the VRQA’s Intellectual Property Rights that has occurred or is likely to occur; or

(b) that the Organisation’s use or an Authorised User’s use of the System infringes, is likely to infringe or has been alleged to infringe the Intellectual Property Rights of any third party.

7.2.3 The Organisation must comply, and must take all reasonable steps to ensure that Authorised Users comply, with all reasonable directions from the VRQA in relation to any infringement referred to in clause 7.2.2 and must render all reasonable assistance, and must take all reasonable steps to ensure Authorised Users render all reasonable assistance to the VRQA, at no cost to the VRQA, in relation to any such infringement, including:

(a) ceasing use of any allegedly infringing material; and

(b) allowing the VRQA (or a nominee of the VRQA) the right to control any related litigation or settlement negotiations.

7.2.4 The Organisation must not disclose, distribute or otherwise deal with the Data without the prior written approval of the VRQA.

7.3 Obligations survive

The Organisation's obligations under this clause 7 will survive the suspension, frustration, repudiation, or termination of the Agreement.

8. Audit

If, during the Term, the VRQA gives notice to the Organisation that it proposes to audit, either directly or through its auditors, the Organisation’s information handling practices, the Organisation must provide all reasonable assistance to the party conducting such an audit.


9. Indemnities and Liabilities

9.1 Indemnities9.1.1 To the maximum extent permitted by Law, and notwithstanding any other provision of this

Agreement, the VRQA does not give any guarantee, indemnity or warranty or make any representation of any kind, express or implied, in connection with the System, including, without limitation, fitness for purpose, merchantable quality or non-infringement of third party rights.

9.1.2 The Organisation indemnifies the VRQA, its employees, contractors, licensors and third party suppliers from and against any Losses, costs (including legal costs on a full indemnity basis), expenses, or liability that the VRQA may incur, suffer or become liable for arising (directly or indirectly) from or in connection with:

(a) any negligent or unlawful acts or omissions of the Organisation or any Authorised User;

(b) any failure on the part of the Organisation or any Authorised User to comply with any Data Source Terms;

(c) any failure on the part of the Organisation or any Authorised User to comply with the Agreement;

(d) the Organisation’s and any Authorised User's access to or use of the System in a manner not expressly contemplated by the Agreement; or

(e) any data or content the Organisation or any Authorised User uploads to the System.

9.2 Liabilities9.2.1 To the maximum extent permitted by Law, the VRQA or its licensors and third party suppliers is not

liable for any Loss or damage (including Consequential Loss) suffered under or in connection with this Agreement or the System.

9.2.2 Without limiting the scope of clause 9.2.1, the VRQA is not liable to the Organisation, any Authorised User or any third party for any Loss arising out of:

(a) planned or unplanned downtime or maintenance of the System;

(b) connectivity issues outside of the VRQA’s control, including issues with the Organisation’s or any Authorised User’s internet connectivity, the public internet or third party software, hardware or infrastructure; or

(c) other circumstances or events beyond the VRQA’s control.

10. Termination

10.1 Termination for convenienceThe VRQA may terminate the Agreement with immediate effect (but without prejudice to any other remedies the VRQA may have) at any time without notice and without compensation.

10.2 Termination by the VRQAThe VRQA may terminate the Agreement by giving written notice to the Organisation with immediate effect (but without prejudice to any other remedies the VRQA may have) where:

10.2.1 in the VRQA’s reasonable opinion, the Organisation is in material breach of the Agreement and, where such breach is capable of remedy, fails to remedy that breach within 10 days of a written notice requiring it to do so;

10.2.2 the Organisation fails to comply with any requirement under or pursuant to the Act;

10.2.3 the Organisation suffers an Insolvency Event;

10.2.4 the Organisation ceases or threatens to cease to conduct its business in a normal manner; or


10.2.5 the VRQA has exercised its right to suspend the Organisation’s access to or use of the System under clause 10.3 for a continuous period of30 days.

10.3 SuspensionIn addition to any right of termination the VRQA may have under this Agreement, the VRQA may also suspend the Organisation’s and/or the Authorised User’s access to and use of the System with immediate effect (without liability to the Organisation or any third party) at any time and without notice.

10.4 Consequences of terminationUpon termination of the Agreement the Organisation must, and must procure the Authorised User to:

10.4.1 immediately cease to access and /or use the System; and

10.4.2 requested by the VRQA, deliver to the VRQA a full extract of all Data within the custody or control of the Organisation to the standard and with such information and assistance as is required to enable a reasonably qualified database administrator or technical analyst to identify all sub-categories of Data within the extract.

11. Disputes

11.1 Where a dispute arises between the parties in connection with the Agreement, the parties must enter into discussions in good faith to resolve the dispute or to agree on a process to resolve all or part of the dispute without court proceedings. Unless the parties otherwise agree, discussions between the parties under this clause must continue for 21 days unless resolved earlier.

11.2 If the dispute is not resolved under clause 11.1, either party may refer the dispute for mediation administered by the Australian Disputes Centre Limited (ADC) in accordance with the current ADC Guidelines.

11.3 The mediator must be appointed by agreement between the parties but, failing agreement, will be appointed by the Chairman of the ADC or the Chairman's authorised representative.

11.4 The parties must:

11.4.1 share equally in the mediator’s fees and disbursements in connection with the mediation; and

11.4.2 bear their own costs in connection with the mediation.

11.5 For the purposes of this clause 11, 'dispute' includes any disagreement, difference of opinion, or failure to agree on any matter related to the Agreement or its performance.

11.6 A party must not start court proceedings (except proceedings seeking interlocutory relief) in respect of a dispute arising out of the Agreement unless that party has complied with this clause11.

11.7 The parties must continue to perform their obligations (including not to access or use the System if the Organisation’s and/or its Authorised Users’ access has been suspended by the VRQA) under the Agreement during the resolution of any dispute(s).

12. General

12.1 Governing Law

The Agreement will be governed by and construed according to the laws of Victoria, Australia. The parties submit to the exclusive jurisdiction of the courts of Victoria.

12.2 Notices


Notices under this Agreement may be delivered by hand, by mail or by email to the addresses specified by the parties. Notice will be deemed given:

12.2.1 in the case of hand delivery, upon written acknowledgment of receipt by an officer or other duly authorised employee, agent or representative of the receiving party;

12.2.2 in the case of posting, three days after dispatch; and

12.2.3 in the case of email, upon receipt of transmission if received on a business day or otherwise at the commencement of the first business day following transmission.

12.3 Variation

The VRQA may amend the provisions of this Agreement from time to time. All amended provisions will automatically take effect immediately upon posting on the System portal.

12.4 Severability

If any provision of the Agreement is held by a court of competent jurisdiction to be contrary to law, unenforceable or void (including in respect of any unfair contract terms legislation), that provision will be deemed to be null and void and the remaining provisions of the Agreement will be severed and otherwise continue in full force and effect.

12.5 Entire Agreement

The Agreement is the entire agreement between the parties regarding the Organisation’s and Authorised Users’ access to and use of the System. It supersedes and displaces all prior representations, arrangements, agreements, discussions, statements and understandings (written or oral) in respect of its subject matter.

12.6 Assignment, Subcontracting and Novation

This Agreement is personal to the Organisation and may not be assigned, transferred, or novated by the Organisation without the VRQA’s prior written consent (not to be unreasonably withheld or delayed).

12.7 Rights cumulative

The rights, powers, privileges and remedies provided under any provision of the Agreement are cumulative and are not exclusive of any rights, powers, privileges or remedies provided under any other provision of the Agreement or by applicable law or otherwise.

12.8 Waiver and exercise of rights12.8.1 A single or partial exercise or waiver of a right relating to this document does not prevent any other

exercise of that right or the exercise of any other right.

12.8.2 No party will be liable for any Loss or expenses incurred by another party caused or contributed to by the waiver, exercise, attempted exercise, failure to exercise or delay in the exercise of a right.

12.9 Survival

Subject to any provision to the contrary, the Agreement shall endure to the benefit of and be binding upon the parties and their successors, trustees, permitted assigns or receivers but shall not endure to the benefit of any other persons. The covenants, conditions and provisions of the Agreement which are capable of having effect after the expiration of the Agreement shall remain in full force and effect following the termination of the Agreement.

13. Definitions

13.1 In this Agreement, unless the contrary intention appears:


Act has the meaning given to it in the Background.

Agreement means this Account Agreement (including all schedules) and the Documentation.

Authorised User means the person specified by the Organisation, or subsequently accepted by the VRQA as an Authorised User in accordance with clause 3.2.

Commencement Date has the meaning given to that term in clause 1.

Confidential Information in respect of the VRQA, means all information and materials, in any form, about the VRQA that come into the possession of the Organisation pursuant to, or as a result of or in performance of the Agreement, including Data and information made available via the System, but excluding information which:

(a) at the time of its first disclosure or observation under this Agreement, was in the public domain;

(b) after disclosure or observation under the Agreement, comes into the public domain otherwise than by disclosure in breach of the Agreement;

(c) is received by the Organisation from a third party who has the right to disclose the information; or

(d) was already in the Organisation's possession or knowledge without restriction prior to its disclosure or observation.

Consequential Loss means any incidental, consequential, special exemplary, or indirect damages (including for loss of profits or revenue, wasted expenditure, business interruption, anticipated savings, loss of goodwill, loss of data) arising directly or indirectly from, or relating to, this Agreement or the Data Sources, whether or not the loss or damage was foreseeable or contemplated by the VRQA or its licensors or suppliers, or if the VRQA or its licensors or suppliers have been advised of the possibility of such loss or damage.

Data means all data (including Personal Information) created, collected or produced under or in connection with this Agreement.

Data Source has the meaning given to that that term in clause 3.6.1.

Data Source Terms has the meaning given to that term in clause 3.6.2.

Documentation means any materials the VRQA provide or otherwise make available to the Organisation or Authorised Users in respect of the System, expressly including the Epsilon Policy and Procedures Manual Service Description, and any other documentation given by or on behalf of the VRQA to the Organisation or the Authorised User from time to time.

Information Privacy Principles has the meaning given to that term in the Privacy and Data ProtectionAct 2014 (Vic).

Insolvency Event means any of the following events:

(a) a party, being an individual, commits an act of bankruptcy;

(b) a party becomes insolvent;

(c) a receiver, receiver and manager, administrator, controller, provisional liquidator or liquidator is appointed to a party or a party enters into a scheme of arrangement with its creditors or is wound up;

(d) a party assigns any of its property for the benefit of creditors or any class of them, without the consent of the other party;

(e) an encumbrancee takes any step towards taking possession or takes possession of any assets of a party or exercises any power of sale; or


(f) the party has a judgment or order given against it in an amount exceeding $10,000.00 (or the equivalent in another currency) and that judgment or order is not satisfied or quashed or stayed within 20 Business Days after being given.

Intellectual Property Rights means all and any patents, patent applications, trade marks, service marks, trade names, domain names, registered designs, unregistered design rights, copyrights, know how, trade secrets and rights in confidential information, URLs and all and any other intellectual property rights, whether registered or unregistered, and including all applications and rights to apply for any of the same.

Law includes:

(a) any law, statute, regulation, ordinance, by-law, order or proclamation, and the common law; and

(b) any authorisation, ruling, judgment, order, decree or other requirement of any authority.

Loss means any damage, punitive damages, liability, claim, obligation, duty, loss, charge, cost or expense (including legal expenses on a full indemnity basis and consultant's fees), interest, penalty, fine and tax, however it arises and whether it is present or future, fixed or unascertained, actual or contingent.

Protective Data Security Standards has the meaning given to that term in the Privacy and Data Protection Act 2014 (Vic).

Purpose has the meaning given to that term in paragraph C of the Background.

Software means a set of coded instructions that performs functions or provides working data or parameters to enable a device or system to operate in a specified manner, and be loaded into a system or device dynamically by a user and includes all firmware and operating systems required by a system or subsystem to perform in a specified manner, and includes all software used by the System where the Intellectual Property Rights in such Software are owned by the VRQA’s licensor and/or third party suppliers.

State means the State of Victoria.

System has the meaning given to that term in paragraph C of the Background.

Term has the meaning given to that term in clause 1.

Victorian Protective Data Security Framework has the meaning given to that term in the Privacy and Data Protection Act 2014 (Vic).

Virus means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses

14. Interpretation

14.1 In the Agreement, unless the contrary intention appears:

14.1.1 the clause headings are for ease of reference only and shall not be relevant to interpretation;

14.1.2 a reference to a clause number is a reference to its subclauses;

14.1.3 words in the singular number include the plural and vice versa;

14.1.4 words importing a gender include any other gender;

14.1.5 a reference to a person includes bodies corporate and unincorporated associations and partnerships;

14.1.6 a reference to a clause is a reference to a clause or subclause of this Agreement;

14.1.7 a reference to a subclause is a reference to a subclause of the clause in which that reference is made;


14.1.8 where a word or phrase is given a particular meaning, other parts of speech and grammatical forms of that word or phrase have corresponding meanings;

14.1.9 monetary references are references to Australian currency.

In the interpretation of the Agreement, no rule of construction applies to the disadvantage of the party preparing the document on the basis that it prepared or put forward this document or any part of it.


Epsilon Account Agreement for RTOs€¦ · Web viewwhere a word or phrase is given a particular meaning, other parts of speech and grammatical forms of that word or phrase have

Documents