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Partner Agreement

1. Definitions and interpretation

1.1. Defined terms

In this Agreement:

Affiliate means “associated entity” (as that phrase is defined in section 50AAA of the Corporations Act 2001 (Cth)) of the Partner.

Approval means certificate, licence, consent, permit, approval or other requirement of any Authority having jurisdiction in connection with the activities contemplated by this Agreement.

Authority means any government, semi-governmental, statutory, administrative, fiscal or judicial body, department, commission, authority or tribunal.

Claim means any claim, proceeding, cause of action, action, demand or suit (including by way of contribution or indemnity).

Confidential Information of a Disclosing Party means the following information, regardless of its form and whether the Receiving Party becomes aware of it before or after the date of this Agreement:

a. information that is by its nature confidential;

b. information that is designated by the Disclosing Party as confidential; and

c. information the Receiving Party knows, or ought to know, is confidential,

but excludes information that:

d. the Receiving Party creates (whether alone or jointly with any third person) independently of the Disclosing Party; or

e. is public knowledge (otherwise than as a result of a breach of confidentiality by the Receiving Party or any of its permitted disclosees).

Content Provider means the provider or the author of the Course(s).

Course(s) means the training, resources, courses and/or programs of study offered through GO1’s marketplace.

Disclosing Party means a party who discloses or makes available Confidential Information to the Receiving Party or whose Confidential Information otherwise becomes known to the Receiving Party.

GO1 IP means the Intellectual Property Rights in GO1 Materials.

GO1 Materials means documents, information and materials, including marketing materials, provided or made available by GO1 to the Partner for the purposes of this Agreement or used by GO1 in performing its obligations under this Agreement.

GO1 Policies means rules, policies, procedures, processes, guidelines, manuals and standards applying of GO1, as amended or varied from time to time.

Gross Amount means the amount of revenue actually received by GO1 from a Referral. For the avoidance of doubt, any fees applied by mobile platforms for mobile application sales will reduce the amount actually received by GO1.

Intellectual Property Rights means all intellectual property rights, including the following rights:

a. patents, copyright, rights in circuit layouts, designs, trade and service marks (including goodwill in those marks), domain names and trade names and any right to have confidential information kept confidential;

b. any application or right to apply for registration of any of the rights referred to in paragraph (a); and

c. all rights of a similar nature to any of the rights in paragraphs (a) and (b) that may subsist anywhere in the world (including Australia), whether or not such rights are registered or capable of being registered.

Initial Term means a period of three years from the date the Partner executes or accepts this Agreement.

Law means:

a. any law, including legislation, ordinances, regulations, by-laws and other subordinate legislation, and the common law and equity; and

b. any Approval, including any condition or requirement attaching to an Approval.

Loss means any cost (including legal costs on a solicitor and own third party basis, whether incurred by or awarded against the relevant party), expense, loss, damage, charge or liability whether direct, indirect or consequential (including pure economic loss), present or future, ascertained, unascertained, actual, prospective or contingent, and including any such cost, expense, loss, damage, charge or liability that is incurred in connection with a Claim, including the defence or settlement of that Claim.

Net Amount means Gross Amount, less (1) Taxes (including pursuant to clause 5); and (2) any other amount set out in an applicable Marketing Policy  and (3) any amounts which GO1 is required to pay to a Content Provider.

Partner means you, as the provider of distribution and referral services to GO1 pursuant to this Agreement.  You agree to be the Partner when you sign GO1’s relevant registration form, paper-based Agreement, or by accepting the terms of this Agreement online at GO1’s website.   

Partner Marketing Policy means the GO1 Partner Marketing Policy available on the GO1 website, as amended from time to time.

Partner User means a user of the Partner’s system or systems.

Option means three x 1 year periods, immediately and consecutively succeeding expiry of the Term, (together, the Options), exercisable by GO1.

Personal Information means information or an opinion about an identified individual, or an individual who is reasonably identifiable:

a. whether the information or opinion is true or not; and

b. whether the information or opinion is recorded in a material form or not.

Privacy Laws means all applicable statutes, regulations, by-laws, ordinances or subordinate legislation in force from time to time relating to the protection of Personal Information, privacy or data protection, including the Privacy Act 1988 (Cth) and the Australian Privacy Principles in that Act, , and The General Data Protection Regulation (GDPR) (EU) 2016/679

Privacy Policy means GO1’s privacy policy available at www.go1.com/policy.

 Receiving Party means a party who obtains or otherwise becomes aware of Confidential Information of the other party.

Referral means a paying User that the Partner refers to GO1.

Services means the marketing to, referral of and engagement of Users by the Partner in accordance with the terms of this Agreement.

Tax means:

a. all taxes levied, imposed or assessed under any statute, ordinance, decree, regulation, order or Law in Australia or elsewhere; and

b. any additional tax, interest, penalty, charge, fee or other amount of any kind assessed, charged or imposed in relation to the late or short payment of any tax or the failure to file any return.

Term means the Initial Term plus any Option(s) as exercised by GO1 in accordance with the terms of this Agreement.

User means a user of the GO1 Courses, web based marketplace or learning management system.  Acceptance of a Referral as a User of the GO1 services is at the sole discretion of GO1.

2. Relationship of the parties

2.1. Role of GO1

GO1 will:

a. offer the Courses and operate a web based marketplace platform through its website;

b. work in cooperation with the Partner to integrate the GO1 web based marketplace with the Partner’s system;

c. consider enrolments of individuals referred by the Partner in relation to the Course(s) in accordance with GO1 Policies; and

d. provide the Partner with copies of all GO1 Policies with which the Partner will be required to comply under this Agreement.

2.2. Role of the Partner

The Partner will:

a. integrate GO1’s Course marketplace into its system(s) such that it is made available by default to all Partner Users;

b. perform the Services diligently and to a professional standard and be open and honest about the Partner’s relationship to GO1.  The Partner must not misrepresent or embellish the relationship between the Partner and GO1 or imply any relationship or affiliation between the Partner and GO1 or any other person or entity except as expressly permitted by this Agreement;

c. not represent itself as an agent or employee of GO1 or represent that it has the authority to bind GO1 to a contract;

d. comply with all applicable copyright and other laws that pertain to the Partner’s website.  GO1 will not be responsible if the Partner use another person's copyrighted material in violation of the Law;

e. deliver the details of Referrals and Users to GO1 within 1 business day after the Referral or User makes an enquiry with the Partner about a Course(s);

f. be primarily responsible for the delivery of the Services;

g. act in an honest, ethical and responsible manner when performing the Services;

h. not communicate, engage with or contact any User about the Course(s) or any other products or services offered by GO1, after the User’s enrolment with GO1, unless otherwise agreed with GO1;

i. not  directly or indirectly, for the Partner or on behalf of another, solicit business away from, or solicit, induce, influence, or encourage any of GO1’s content providers, authors or instructors to upload their Course(s) on the Partner’s websites and/or platforms, or otherwise alter, terminate or breach their contractual or other business relationship with GO1;

j. not infer that the Partner will be undertaking any training and/or assessment for or on behalf of GO1;

k. not make any guarantees, commitments or assurances regarding the Course(s) or the likely success of a User completing any of the Course(s) or the outcomes of the Course(s) including any particular employment outcome;

l. comply with GO1 Policies given to the Partner under clause 2.1(d);

m. not register or purchase domain names that include GO1’s company’s name or any misspellings or variations of GO1’s company name to run promotions as a partner of GO1. The Partner will not include GO1’s company name, variations of GO1’s company name, or the look and feel of GO1’s own social media pages on any social media pages where the Partner run promotions as a partner of GO1.

n. not promote Courses on a website that contains any form of misleading, defamatory, obscene, illegal, bigoted, pornographic or any other content deemed offensive by GO1, in its sole discretion;

o. not use marketing practices that attract fake customers. GO1, in its sole discretion, will make the determination whether someone is a fake customer;

p. may work with an affiliate or sub-contractor network so long as the Partner’s affiliates and sub-contractors follow the terms of this Agreement;

q. must not place advertisements (whether directly or indirectly) on behalf of third party advertiser(s) (whether as an agent or otherwise) in respect of the Courses; and

r. if a User or Referral requests courses or content which GO1 does not currently offer, the Partner will provide GO1 with sixty (60) days’ notice in writing in which to source such courses or content, after which time the Partner may provide such courses or content to the User or Referral from another content provider.

2.3. Relationship of the parties

Except to the extent expressly provided in this Agreement, nothing in this Agreement creates a relationship of employment, trust, agency or partnership between the parties.

2.4 Non-disparagement

The parties must:

a. not make or procure the making of any remark, statement or announcement (whether publicly or otherwise) that disparages the other party or any of its related bodies corporate or personnel in relation to any matter connected with this Agreement; and

b. use reasonable endeavours to present a positive image and protect the reputation of the other party.

3. Performance

3.1. General performance obligations

Each party must carry out its role and obligations set out in this Agreement:

a. to a professional standard;

b. in a timely fashion, including so as to achieve any timing for delivery of the Services; and

c. using personnel with appropriate expertise, qualifications and experience.

3.2. Compliance with directions

The Partner must carry out its role and obligations in relation to the Services in accordance with all reasonable directions and instructions of GO1, including directions and instructions for the purpose of ensuring that the Services are delivered in accordance with all applicable Laws and GO1 Policies, and that the delivery of the Services does not cause GO1 to breach any applicable Laws or GO1 Policies.

4. Revenue Reports and Payments

4.1. Revenue Share

a. In respect of revenue for which the Partner is responsible for directly generating from a Referral (Partner Revenue):

i. GO1 will pay the Partner 50% of the Net Amount (or such other percentage of the Net Amount as set out in the GO1 Partner Cover Agreement or when a User signs up through the GO1 Website)  received by GO1 as a result of that Referral, capped at a maximum of 15% of the Gross Amount less any applicable deductions such as User refunds (Revenue Share); or

ii. where the Partner opts-in to a partner marketing program (as detailed further in the Partner Marketing Policy), that amount calculated in accordance with that partner marketing program/s (Adjusted Revenue Share).

If GO1 changes the Revenue Share, it will provide the Partner with thirty (30) days’ notice via email or prominent notice on the Services.

 

b. 15 days after the end of each quarter, GO1 will provide the Partner with a report (Revenue Report) setting out the Revenue Share or Adjusted Revenue Share to which the Partner is entitled.

c. The Partner may submit an invoice to GO1 for the Revenue Share or Adjusted Revenue Share payable to the Partner within 30 days of receipt by GO1 of the Partner’s invoice.

d. Subject to clause 4.1(e), GO1 must pay the amount of any correctly rendered invoice received from the Partner under clause 4.1(c) within 30 days of receiving the invoice unless otherwise agreed with GO1, except to the extent that the payment or amount of the payment is in dispute.

e. GO1 is entitled to withhold all or part of the Revenue Share or Adjusted Revenue Share in respect of any Services that it considers has not been provided by the Partner in accordance with this Agreement.

f. Payment of an invoice is not:

i. evidence or an admission that the Partner has performed its obligations in relation to the development and delivery of the Course(s) in accordance with this Agreement;

ii. evidence of the value of the services provided by the Partner under this Agreement;

iii. an admission of liability; or

iv. acceptance or approval of the Partner's performance,

but must be taken only as payment on account.

4.2. Integration work

The parties may agree in writing the type and scope of  integration work GO1 will undertake as required under clause 2.1(b) (Integration Work)The parties may agree in writing that in consideration for undertaking the Integration Work, the Partner must generate a minimum amount of Partner Revenue (Integration Amount), and that GO1 may set-off the Integration Amount from any amounts owed to the Partner under clause 4.1.

Where the Partner and GO1 have agreed to undertake Integration Work where GO1 does not charge for such Integration Work, and GO1 has providing a scoping/costing for the Integration Work to the Partner (Scoping Amount), GO1 may deduct the Scoping Amount from any revenue (including the Revenue Share) to which the Partner is entitled under this Agreement, in the event that the Partner fails to meet its obligations under, or otherwise breaches this Agreement.

4.3. Set off

GO1 may deduct from amounts otherwise payable to the Partner any amount due from the Partner to GO1 or any claim to money which GO1 may have against the Partner (whether for damages or otherwise) in connection with this Agreement.

5. Taxes

a. GO1 makes all payments to Partners in AUD regardless of the currency in which the User transacts, or the currency of the sale price of a Course. GO1 will assume all transaction processing fees, excluding foreign currency conversion. 

When the country from which the User purchases the Course requires GO1 to remit VAT (Value Added Tax) or GST (Goods & Services Tax), GO1 will deduct the VAT or GST amount (as applicable) from the Course sale price when calculating the Net Amount (in accordance with the definition of “Net Amount” in clause 1 of this Agreement). 

Countries requiring VAT / GST currently include all European Union (EU) countries, the U.K., South Korea, Japan, New Zealand and Australia, and such other countries as GO1 determines from time to time.

b. In the event that the sale or delivery of a Course or any content to any User in the European Union is subject to any VAT under applicable Law, GO1 will collect and remit the VAT to the competent tax authorities for sales of such Courses or Content to Users in the European Union. GO1 may at its own discretion increase the sale price of a Course where GO1 is of the view that VAT may be due and GO1 will have a liability to account for such. The Partner will indemnify and hold GO1 harmless against any and all claims by any tax authority for any underpayment of VAT, and any penalties and/or interest thereon.

c. For sales of any Courses or content in countries other than the European Union, the Partner is responsible for remitting the taxes to the appropriate taxing authority (which may be different to the tax authority in the location of the Partner).

d. When applicable, GO1 charges and pays European Union taxes for website purchases. In the case of mobile in-app purchases, European Union tax is collected and paid by Apple and Google respectively. 

6. Records and audits

6.1. Records

The Partner must maintain throughout the Term and for a period of seven years after the Term, complete, accurate and up-to-date financial accounts and other records in respect of the performance of its obligations under this Agreement.

6.2. Audits

 a. The Partner must provide access to its premises, books, records, documents, reports, equipment and other property relevant to the performance of this Agreement, and permit the taking of copies or extracts of such books, records, documents or reports, to the extent necessary to enable GO1 and its officers, employees and professional advisers to conduct appropriate audits of the party's fulfilment of all or any of its obligations under this Agreement.

b. GO1 conducting an audit under this clause 6.2 must ensure that the audit is conducted:

i. expeditiously, efficiently, and during reasonable business hours; and

ii. upon reasonable prior written notice.

6.3. Quality assurance review

a. GO1 may conduct a quality assurance review of any of the Services delivered by the Partner under this Agreement.

b. GO1 will undertake the quality assurance review in the same manner as a similar review would be undertaken by GO1 in respect of courses and services offered by GO1 itself.

c. The Partner must provide reasonable assistance to GO1 in respect of the quality assurance review, including by providing access to relevant documents and information.

d. If, after conducting the quality assurance review, GO1 determines that the Partner is not delivering the Services to the standard required by this Agreement, then GO1 may notify the Partner in writing, detailing the basis for that determination.

e. The Representatives will meet to discuss a determination by GO1 under clause 6.3(d) and agree the actions which the Partner must undertake in order to deliver the Services to the standard required by this Agreement and the timeframes in which the Partner must implement those actions.

f. If the Partner fails to implement the actions agreed under clause 6.3(e) within the timeframes agreed under clause 6.3(e), and GO1 determines that the Partner is not performing its obligations to the standard required by this Agreement, GO1 may terminate this Agreement by notice in writing.

6.4. Other quality assurance requirements

The Partner must ensure that appropriate Partner staff are made available and attend any audit meetings as reasonably required by GO1 from time to time.

7. Data and Privacy

a. The Partner may not have a direct contractual relationship with Users. The only information a Partner will receive about Users is what is provided to the Partner through the Services (User Related Data). The Partner understands and agrees that it will indemnify GO1 for any Loss or Claim arising out of the Partner’s use of any User Related Data. 

b. GO1 will own and can use any aggregate data or Personal Information collected in accordance with GO1’s Privacy Policy and the Partner agrees GO1 may include terms and conditions on its website to reflect the same.  The Partner must advise GO1 if any Personal Information or aggregate data (being non-Personal Information) is to be collected during the Term in connection with the Services. Where GO1 agrees the Partner may own or use any aggregate data or Personal Information, the Partner warrants it will comply with all Privacy Laws in relation to the use and storage of any Personal Information to the same standard as set out in GO1’s Privacy Policy.

c. Each party must comply with all applicable Privacy Laws and GO1’s Privacy Policy with respect to Personal Information it collects, uses, discloses, stores, transfers or handles for the purposes of this Agreement

d. If the Partner becomes aware of any Personal Information collected or held by the Partner as a result of the parties' activities under this Agreement, the Partner must:

i. not use, disclose, store, transfer, or handle the information except in accordance with Privacy Laws and GO1’s Privacy Policy;

ii. take all steps to ensure that the information is protected from misuse, loss, unauthorised access, modification, or disclosure;

iii. use or disclose the information only for a purpose connected with this Agreement or as permitted by Law; and

iv. cooperate with any reasonable request or direction from GO1 that relates to protecting the information or exercising the functions of the Privacy Commissioner under the Privacy Act 1988 (Cth).

8. Intellectual Property Rights

8.1. Licence to use GO1 IP

a. GO1 grants to the Partner, for the duration of the Term, a non-exclusive, non-transferable licence to use, reproduce, publish, communicate to the public and otherwise exercise GO1 IP solely for the purpose of performing the Services, and for no other purpose.

b. The Partner acknowledges and agrees that it is not entitled to continue to use any of GO1 IP after the expiration or termination of this Agreement.

8.2. Licence of the Partner IP

The Partner grants to GO1 a non-exclusive, non-transferable licence to use, reproduce, publish, communicate to the public and otherwise exercise the Partner’s Intellectual Property Rights in the Partner’s materials for the purpose of complying with GO1's obligations under this Agreement, including the right to grant sub-licences to Users and Related Bodies Corporate of GO1 and other persons for that purpose (if required).

8.3. Third party Intellectual Property Rights

If a party makes available to the other party any documents, information or materials (including marketing materials) for use under this Agreement and any of the Intellectual Property Rights in those documents, information or materials are owned by a third party, that party must:

a. ensure that it has all necessary rights to grant the licence specified in clause 8.1 or clause 8.2 (as the case may be); and

b. notify the other party prior to, or at the same time as, making available those documents, information or materials of any limitations on the other party's rights to use those documents, information or materials pursuant to clause 8.1 or clause 8.2 (as the case may be).

8.4. Infringement of Intellectual Property Rights

a. The Partner must promptly notify GO1 in writing of any:

i. actual, suspected or anticipated infringement by a third party of any GO1 IP; or

ii. Allegation or Claim (written or otherwise) that the use of any of GO1 IP by the Partner or GO1 infringes any third party rights (including Intellectual Property Rights).

b. The Partner must provide to GO1 (at GO1's reasonable cost) all assistance reasonably requested by GO1 relating to proceedings that GO1 may take against any third party for any actual, suspected or anticipated infringement of GO1 IP.

c. GO1 must promptly notify the Partner in writing of any:

i. actual, suspected or anticipated infringement by a third party of any the Partner IP; or

ii. allegation or Claim (written or otherwise) that the use of any of the Partner IP by the Partner or GO1 infringes any third party rights (including Intellectual Property Rights).

d. GO1 must provide to the Partner (at the Partner's reasonable cost) all assistance reasonably requested by the Partner relating to proceedings that the Partner may take against any third party for any actual, suspected or anticipated infringement of the Partner IP.

9. Restricted Persons

a. The Partner hereby warrants that neither it nor any of its Affiliates is a Restricted Person (Restricted Person). For purposes of this Agreement, the Partner or an Affiliate is a Restricted Person if the Partner or Affiliate (or any of their officers, directors, or controlling shareholders on behalf of which the Partner is using the Services is (1) a national of or an entity existing under the Laws of Cuba, Iran, Sudan, Syria, or any other country with which U.S. persons are prohibited from engaging in transactions, as may be determined from time to time by the U.S. Treasury Department; (2) designated as a Specially Designated National or institution of primary money laundering concern by the U.S. Treasury Department; (3) listed on the Denied Persons List or Entity List by the U.S. Commerce Department; (4) engaged in nuclear, missile, chemical, or biological weapons activities to which U.S. persons may not contribute without a U.S. Government license; or (5) owned, controlled, or acting on behalf of a Restricted Person. If the Partner or Affiliate becomes a Restricted Person during the term of this Agreement, the Partner shall notify GO1 within twenty-four (24) hours, and GO1 shall have the right to terminate any further obligations to the Partner, effective immediately and with no further liability to the Partner, but without prejudice to the Partner’s outstanding obligations to GO1.

b. The Partner agrees that it shall not utilise the Services to conduct or facilitate any transaction with any Restricted Person, except as may be expressly authorised in advance in writing by the U.S. Government. The Partner may not remove or export from the United States or allow the export or re-export of the Services, or any direct product thereof, including technical data, in violation of any restrictions, Laws, or regulations of the United States or any other applicable country.

10. Confidential Information

10.1. Use and disclosure

A Receiving Party:

a. may use Confidential Information of the Disclosing Party only for the purposes of this Agreement;

b. must keep confidential all Confidential Information of the Disclosing Party except:

i. for disclosure permitted under clause 10.2; and

ii. to the extent (if any) the Receiving Party is required by Law to disclose any Confidential Information; and

c. without limiting its obligations under clause 10.1 (a) and 10.1 (b), must use commercially reasonable efforts to keep all Confidential Information of the Disclosing Party safe and secure, including all notes and other records prepared by the Receiving Party or its disclosees based on or incorporating any Confidential Information of the Disclosing Party and all copies of those notes and records.

10.2. Permitted disclosure

A Receiving Party may disclose Confidential Information of the Disclosing Party to persons who:

a. have a need to know for the purposes of this Agreement (and only to the extent that each has a need to know); and

b. before disclosure:

i. in the case of the Receiving Party's officers and employees, have been directed by the Receiving Party to keep confidential all Confidential Information of the Disclosing Party; and

ii. in the case of other persons approved in writing by the Disclosing Party, have agreed in writing with the Receiving Party to comply with substantially the same obligations in respect of Confidential Information as those imposed on the Receiving Party under this Agreement,

(each a Direction).

10.3. Receiving Party's obligations

A Receiving Party must:

a. ensure that each person to whom it discloses Confidential Information under clause 10.2 complies with its Direction; and

b. immediately notify the Disclosing Party of, and take all reasonable steps to prevent or stop, any suspected or actual breach of a Direction or any improper or unauthorised use of the Confidential Information.

10.4. Disclosure required by Law

If a Receiving Party is required by Law to disclose any Confidential Information of the Disclosing Party to a third person (including government), the Receiving Party must, to the extent permitted by Law:

a. before doing so:

i. notify the Disclosing Party; and

ii. give the Disclosing Party a reasonable opportunity to take any steps that the Receiving Party considers necessary to protect the confidentiality of that information; and

b. notify the third person that the information is confidential to the Disclosing Party.

10.5. Acknowledgments

Each Receiving Party acknowledges that:

a. the Disclosing Party may suffer commercial or other Loss if the Confidential Information of the Disclosing Party is used by any third party, or disclosed or made available to any third party by the Receiving Party other than in accordance with this Agreement;

b. damages may be an inadequate remedy to protect the interests of the Disclosing Party if the Receiving Party or any of its permitted disclosees breach the provisions of this clause 10; and

c. the Disclosing Party is entitled to seek and obtain injunctive relief or any other remedy, in any court, against the Receiving Party for breach of this clause 10.

11. Liability

11.1. Indemnity

a. Each party indemnifies and agrees to keep indemnified the other party and its officers, employees, agents and subcontractors, from and against any Losses arising from:

i. any Claims by third parties that the use of (where GO1 is the indemnifying party) GO1 Materials or (where the Partner is the indemnifying party) any of the Partner’s own materials infringes a third person's rights (including any Intellectual Property Rights); and

ii. any Claims with respect to damage to physical property or injury or death to persons where that Claim arises as a result of any negligent act or omission or wilful misconduct of the indemnifying party.

b. A party will not be liable under the indemnity in clause 11.1(a) to the extent that the liability has been caused by the acts or omissions of any of the indemnified persons.

c. Any person claiming under the indemnity in clause 11.1(a) must use all commercially reasonable efforts to mitigate any loss or damage the subject of the indemnity.

d. Each party (Indemnifying Party) agrees at all times to indemnify (and keep indemnified) the other party (Indemnified Party)  and the directors, officers, and employees of the Indemnified Party and each of them for any loss, claim, liability, injury, damage, cost and expense (including reasonable legal costs and expenses) in connection with any action, suit, claim, demand or proceeding made by any person, against any of those indemnified under this clause in consequence of any breach or non-observation of any term of this Agreement on the part of the Indemnifying Party or arising from any negligence, breach of statutory duty or wilful, wrongful or unlawful act or omission of the Indemnifying Party.

e. Subject to clause 11.1(f), GO1’s aggregate liability for any Loss suffered by, or Claim by the Partner in connection with this Agreement is limited to the amounts paid by GO1 to the Partner under this Agreement during the twelve (12) month period immediately preceding the Loss or Claim.

f. In no circumstances is a party liable for any indirect or consequential loss or damage suffered by the other or any other person arising out of, in connection with or relating to the performance, breach or non-observance of this Agreement by that party.  Each party agrees that loss of profits or loss of business opportunities, however occurring, will constitute indirect or consequential loss or damage.

11.2. Indemnification proceedings

In relation to any proceedings in respect of which a person is entitled to make any claim for indemnity under clause 11.1:

a. if the Indemnifying Party requests, the Indemnified Party must allow the indemnifying party to conduct the proceedings in its own name (including by seeking leave to withdraw from the proceedings and withdrawing from the proceedings if such leave is granted, if the indemnifying party requests);

b. if the relevant Indemnified Party conducts the proceedings, it must keep the Indemnifying Party reasonably informed as to the progress of the proceedings and consult with the Indemnifying Party before lodging any pleadings or agreeing to any settlement; and

c. if the Indemnifying Party conducts the proceedings, each Indemnified Party must provide the Indemnifying Party with any assistance and information that the Indemnifying Party reasonably requests.

11.3. Exclusion

Neither party will have any liability whatsoever to the other party for any loss of contract, loss or damage of the character of loss of profit or revenue, loss of opportunity, loss of production, loss of customers or goodwill, production stoppage, loss or corruption of data, loss of use of data, loss of privacy of communications, or any special, indirect or consequential loss or damage.

12. Force majeure

Neither party is liable for any failure to perform or delay in performing its obligations under this Agreement if that failure or delay is due to anything beyond that party's reasonable control.  If that failure or delay exceeds 60 days, the other party may terminate this Agreement with immediate effect by giving notice to the other party.

13. Content Providers

To the extent permitted by law, during this Agreement, and for the period specified in clause 13(a) and in the area specified in 13(b), the Partner agrees to (and agrees to procure that each of its Affiliates and the shareholders, directors and officers of the Partner and Affiliates, not directly approach, work with, or enter into agreements either directly or indirectly with GO1’s content providers or other distribution partners as listed on GO1’s website as updated from time to time, as publicly known and/or as otherwise communicated directly to the Partner, without the written permission of GO1.

a. Time restraint: (i) from expiry or termination of this Agreement (Expiration Date) until 12 months after the Expiration Date; (ii) for the period of 12 months commencing on the first anniversary of the Expiration Date; and (iii) for the period of 12 months commencing on the second anniversary of the Expiration Date.

b. Geographic restraint: (i) all countries; (ii) Australia and the United States of America; (iii) Australia, California, New York State and Delaware; (iv) Queensland, New South Wales, Victoria and California; and (v) Queensland and New South Wales.

(Restraint).

If any part of the Restraint goes beyond what is reasonable in the circumstances and necessary to protect the goodwill of GO1’s business as at the Expiration Date but would be reasonable and necessary if any activity were deleted or a period or area were reduced, then the Restraint applies with that activity deleted or period or area reduced by the minimum amount necessary to make the Restraint reasonable in the circumstances.

 Clause 13 (“Restraint”) has effect as if it were the number of separate clauses which result from combining the commencement of clause 13 with each sub-paragraph of clause 13(a) and combining each such combination with each sub-paragraph of clause 13(b), each resulting clause being severable from each other resulting clause.

14. Term and Termination

a. This Agreement will remain in force for the Term, unless terminated under the terms of this Agreement.

b. GO1 may choose to exercise the Option(s) by written notice to the Partner 14 days prior to the expiration of the Initial Term, or the immediately preceding Option, as applicable.

c. This Agreement may be terminated by GO1 providing 5 days’ notice in writing to the Partner where:

i. the Partner has committed a breach of a provision of this Agreement which can be rectified and fails to rectify the breach within ten (10) Business Days of written notice being given by GO1;

ii. the Partner has committed a breach of this Agreement which cannot be rectified; or

iii. a controlling interest in the Partner passes or is likely to pass to any other company or person.

d. This Agreement may be terminated by either party immediately where:

i. any fact, matter or circumstance represented or warranted by the other party which is or later proves to be false, misleading or inaccurate when made;

ii. the other party is declared bankrupt or commits an act of bankruptcy;

iii. the other party enters into a deed of arrangement or deed of assignment or composition with its creditors;

iv. a provisional liquidator of the other party is appointed;

v. an order is made for the winding up of the other party;

vi. a receiver, receiver and manager, liquidator, trustee, administrator, other controller (as defined in the Australian Corporations Act 2001 (Cth) or similar official is appointed over any of the assets or undertakings of the other party;

vii. the other party is placed under official management or enters voluntary administration;

viii. the other party suspends payment of its debts generally;

ix. the other party is or becomes unable to pay its debts when they are due or is or becomes unable to pay its debts or is presumed to be insolvent within the meaning of the Australian Corporations Act 2001 (Cth); or

x. the other party ceases to carry on business or threatens to cease to carry on business.

15. Refunds

The Partner acknowledges and agrees that that Users may have the right to receive a refund, as set forth in GO1’s General Terms. Neither Partners nor GO1 shall receive any payments, fees or commissions for any transactions for which a refund has been granted pursuant to GO1’s General Terms and Conditions (available at www.go1.com/tos). In the event that a User requests a refund for a Course after the Partner has received Revenue Share or Adjusted Revenue Share in respect of that Course, GO1 reserves the right to either (1) deduct the amount of such refund from the next payment to be sent to that Partner, or (2) require that Partner to refund Revenue Share or Adjusted Revenue Share in respect of any amounts refunded to Users  to the extent no additional payments are due from GO1 to Partner or such payments due to the Partner are insufficient to cover the amounts refunded to Users.

16. Exclusion of implied terms

The law implies various conditions and warranties that might apply to this Agreement.  The parties exclude all of those conditions and warranties to the fullest extent permitted by Law.

GO1's liability for breach of any implied warranty or conditions that cannot be excluded is restricted, at GO1's option, to: (a) the re-supply of the relevant goods or services; (b) the cost of the re-supply of the relevant goods or services; or (c) any amount paid by the Customer to GO1 in respect of the relevant goods or services.

14.2 GO1 does not exclude any rights or remedies available to the Content Provider under the Australian Consumer Law that cannot be excluded or restricted.

17. Modifications to this Agreement

From time to time, GO1 may update this Agreement to clarify its practices or to reflect new or different practices, such as when GO1 adds new features, and GO1 reserves the right to modify and/or make changes to this Agreement at any time. If GO1 makes any material change GO1 will notify the Partner using prominent means such as by email notice sent to the email address specified in the Partner’s Account or by posting a notice on GO1’s website. Other modifications will become effective on the day they are posted unless stated otherwise. If the Partner continues to use the Services, after the effective date of any change, then such access and/or use will be deemed an acceptance of and an agreement to follow and be bound by this Agreement as changed. The revised Agreement supersede all previous Agreements.

18. General

a. GO1 may assign or otherwise transfer this Agreement or any of its rights or obligations under this Agreement.

b. The Partner may not assign, transfer or otherwise deal with its rights and obligations under this Agreement without the written consent of GO1.  

c. This Agreement inures to the benefit of and is binding upon the parties, their respective successors in interest by way of merger, acquisition, or otherwise (‘transfer’) and their permitted assigns.  If the Partner transfers all or any part of its business, the Partner will do so on the basis that, subject to the agreement of GO1 at the time, the Partner will oblige the transferee to accept the terms and conditions of this Agreement as part of the transfer.

d. This Agreement and all information supplied by GO1 to the Partner in relation to GO1’s finances and affairs, advertising space(s), contracts, pricing, methods of business and any other information which is designated confidential by GO1 or ought reasonably be regarded as confidential is confidential and the Partner will treat it as such and will not disclose it, or any part of it, to any third party without the prior written consent GO1.

e. This Agreement sets out the entire agreement between the parties as to its subject matter and supersedes all previous agreements, understandings and negotiations on that subject matter, other than any applicable Partner Cover Agreement or similar order form.

f. The Partner must comply with all terms of this Agreement and with any additional directions, special conditions, content and/or product guidelines or specifications advised by GO1 from time to time.

g. The parties agree that this Agreement will be governed by the Law of Queensland, and agree to submit to the jurisdiction of Queensland, Australia.

h. The parties agree that no promise or representation made or given by GO1, its employees, officers, agents or contractors will be recognised unless contained in this Agreement.

i. This Agreement shall not be binding on GO1 until it has been accepted by signature by its duly authorised officer.

I    This Agreement is binding on the Partner, its Affiliates and their successors and permitted assigns.

j. Any Notice may be given by mail or email and sent to a mail address or email address reasonably believed by the sending party to be that of the receiving party. Where such contact details for the receiving party are set out in the Agreement such contact details must be used unless the receiving party has previously informed the sending party in writing of an alternative mail address  or email address.

  

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