1 DEFINITIONS AND INTERPRETATION
Buyer means the purchaser of the Items specified in the Order.
Claim means any claim, demand, debt, action, liability or cost (including reasonable legal costs) of any nature, whether known or unknown.
Conditions means these terms and conditions.
Cost includes all costs, charges, outgoings and expenses of any nature whatsoever, however arising.
DIPL means Doorway to Learning Pty Limited ACN 109 967 222 (trading as “Doorway into Practical Literacy” or “DIPL”).
DIPL Program means the current range of ‘DIPL’ and ‘Lizzy’ spelling, grammar and literacy programs developed including (but not limited to): Early Stage 1; Mid Stage 1; Later Stage 1; Stage 2; Stage 3; ‘Lizzy’ levels 1 – 8; skill development level and games book; and any future programs developed, owned or licensed by DIPL.
Goods means the goods developed, owned or licensed by DIPL or to be supplied by DIPL to the Buyer, including (but not limited to): teacher reference folders; workbooks; puppets; auditory discs; assessment books; extra word lists and extra words and sentences; and any other ancillary or related goods and materials.
Intellectual Property Rights means all intellectual property rights of any nature at any time, including (but not limited to): rights pertaining to patents, copyright, confidentiality, designs, trade marks, trade names and other similar rights, in each case whether registered or not; moral rights; rights under licence; consents or approvals in relation to any such rights; any application or right to apply for registration of any such rights; and all forms of protection of a similar nature or having equivalent of similar effect to any such rights anywhere in the world.
Invoice Amount means the price payable by the Buyer for the Items including all disbursements and taxes and charges payable to any authority.
Items means the Goods, Licence or both.
Licence means the right to use a DIPL Program.
Order means the order placed by the Buyer with DIPL for the purchase of Items.
Owner means DIPL, Waydoor Pty Limited ACN 054 755 047 and Judith Eileen Armstrong.
2 CONDITIONS OF SALE
The Items are provided to the Buyer subject to these Conditions.
3 TERMS OF LICENCE
3.1 This clause 3 applies if the Buyer is acquiring a Licence.
3.2 In consideration for payment of the Invoice Amount, DIPL grants to the Buyer a non-exclusive 10 year Licence of the DIPL Program specified in the Order. Upon expiration of the term of the Licence, the Buyer may renew the Licence for a fee to be agreed by the parties at that time.
3.3 DIPL reserves the right to use and licence the DIPL Programs to other entities throughout the world.
3.4 The Buyer will only use the DIPL Program as permitted or approved in writing by DIPL. The Buyer must not use any part of the DIPL Program in conjunction with any unauthorised product or service or in any other manner not explicitly authorised in writing by DIPL.
3.5 Rights arising out of the Licence are not assignable by the Buyer without DIPL’s consent, which can be withheld in DIPL’s absolute discretion.
3.6 DIPL may revoke the Licence at any time and without notice if in its reasonable opinion the Buyer has breached clause 3.4 or 3.5 of these Conditions.
4 ORDERS
4.1 Orders must be placed using the order form on DIPL’s website and Orders will only be accepted by fax, email or sent by post addressed to DIPL.
4.2 Orders can only be cancelled with DIPL’s written consent and only if the Buyer indemnifies DIPL against all losses incurred as a result of the cancellation.
4.3 DIPL reserves the right to modify, vary or discontinue the provision of the Items without notice.
5 PRICE
5.1 DIPL will use its best endeavours to provide the Items to the Buyer in accordance with the Orders, at its then current prices, however prices are subject to change and may increase without notice to the Buyer.
5.2 Unless otherwise stated, all prices for the Items quoted by DIPL are net, exclusive of all taxes including GST, charges levied by any authority, freight, insurance and delivery costs, which must be paid by the Buyer in addition to the price.
6 PAYMENT
6.1 DIPL will invoice the Buyer for the items specified in an Order.
6.2 The Buyer must pay the Invoice Amount in full to DIPL (without set-off, deduction or counter claim) by bank cheque or electronic funds transfer in Australian dollars within 14 days of the date of the invoice unless alternate arrangements are made between the parties and agreed to in writing by DIPL.
6.3 If any amount owing by the Buyer to DIPL is not paid in full by the due date, DIPL is entitled to charge interest on the outstanding amount at a rate of 20% per annum (calculated daily) from the due date to the date of payment in full.
7 TITLE
7.1 Title to the Goods will pass to the Buyer upon payment of the full Invoice Amount plus interest payable (if any) under these Conditions.
7.2 Title to the DIPL Programs remains with DIPL at all times and will not pass to the Buyer.
8 RISK & DELIVERY
8.1 Risk of loss or damage to the items passes to the Buyer from the time of dispatch of the Items from DIPL’s premises.
8.2 Under no circumstances is DIPL liable for any loss, damage or delay occasioned to the Buyer arising from late delivery or non-delivery of the Items.
8.3 DIPL is under no obligation to accept Items returned by the Buyer.
9 LIABILITY
9.1 Except as otherwise provided in these Conditions, all terms, conditions, warranties, undertakings, inducements or representations whether express, implied, statutory or otherwise relating in any way to the supply of Items are excluded to the fullest extent permitted by law.
9.2 To the fullest extent permitted by law, the liability of DIPL for a breach of any non-excludable rights or any express warranty is limited, at DIPL’s option, to the replacement value of the items or supply of equivalent items;
9.3 DIPL is not liable for any consequential, indirect or special loss, or loss of profits or revenue, loss of business opportunity, loss of production or loss of goodwill, suffered by the Buyer whether arising from or in connection with the supply of the items or anything incidental to the supply of the Items.
10 WARRANTIES & INDEMNITY
10.1 The Buyer warrants:
(a) it has not relied on any representation made by DIPL which has not been stated expressly in these Conditions or upon any description or illustration contained in any document or material produced or provided by DIPL; and
(b) it has not relied on DIPL’s skill or judgment or written or oral representations in deciding whether the Items are fit for a particular purpose or shall meet a particular criteria.
10.2 DIPL does not give any warranty for Goods supplied by DIPL which are manufactured by a third party.
10.3 The Buyer indemnifies DIPL against all Claims threatened or incurred by the user of the Items or any third party whatsoever.
11 CONFIDENTIALITY & INTELLECTUAL PROPERTY RIGHTS
11.1 The Buyer acknowledges the Owner is the exclusive owner of all Intellectual Property Rights relating to, forming part of or used in connection with the Items.
11.2 During the term of the Licence, the Buyer may:
(a) develop or create information or materials concerning or in connection with the Items in which Intellectual Property Rights arise; or
(b) make or propose improvements to, or developments, adaptations or enhancements of, the Intellectual Property Rights of the Owner; or
(c) both, (New Intellectual Property).
11.3 The Buyer acknowledges and agrees that on creation, all Intellectual Property Rights and other rights in and to the New Intellectual Property vest in the Owner solely and absolutely and nothing in these Conditions confers on the Buyer any Intellectual Property Rights or other rights in or to the New Intellectual Property.
11.4 The Buyer agrees to provide the Owner (at the Owner’s Cost) with all assistance (including executing documents and swearing statutory declarations) reasonably required by the Owner to register or otherwise assure the Owner’s Intellectual Property Rights and other rights in and to the New Intellectual Property.
11.5 The Buyer must not do anything or permit anything to be done which does or may infringe, harm, challenge, deny, question or contest the Owner’s Intellectual Property Rights.
11.6 The Buyer acknowledges the confidential nature, design and concept of the Items.
11.7 The Buyer must not, without DIPL’s prior written consent, copy or cause to be copied or disclosed any details of such design, concept or items to third party. The Buyer may only make use of such details to the extent necessary to enable the Goods or DIPL Program to be used in a manner reasonably contemplated by DIPL.
11.8 The Buyer’s obligations under this clause survive termination of these Conditions.
12 TERMINATION
DIPL may immediately terminate or cease supply or elect not to supply items in whole or in part at any time for any reason by written notice to the Buyer.
13 FORCE MAJEURE
If, by reason of any circumstance beyond the reasonable control of DIPL, DIPL is unable to perform, in whole or in part, any obligation under these Conditions, it will be relieved of the obligation to the extent and for the period that it is so unable to perform, and will not be liable to the Buyer in respect of such inability in any way whatsoever.
14 GENERAL
14.1 If a dispute arises in relation to these Conditions, the parties must in good faith attempt to resolve the dispute using dispute resolution processes such as negotiation or mediation before referring the dispute to arbitration or commencing court proceedings. If the dispute cannot be resolved between the parties within 42 days of the date on which a party first gave notice to the other of the dispute, a party who has complied with this clause may refer the dispute to arbitration or commence court proceedings in relation to the dispute.
14.2 An agreement on the part of two or more persons binds them jointly and severally.
14.3 A variation or waiver of a provision or any amendment of these Conditions is effective only if in writing and signed by both parties.
14.4 A failure, delay, relaxation or indulgence on the part of a party in exercising any right conferred on that party by these Conditions does not operate as a waiver of that right.
14.5 These Conditions constitute the sole and entire agreement between the parties with regard to its subject matter. Any previous agreements or understandings between the parties regarding the subject matter are merged into and superseded by these Conditions. A warranty, representation, guarantee or other terms or conditions of any nature not contained in these Conditions is of no force or effect.
14.6 Any provision, or the application of any provision, which is void, illegal or unenforceable in any jurisdiction does not affect the validity, legality or enforceability of that provision in any other jurisdiction or of the remaining provisions in that or any other jurisdiction.
15 GOVERNING LAW
This Agreement is governed by the laws in force in New South Wales.
