Terms of Trade

  1. Definitions
  • CapCo means The CapabilityCo Pty Ltd (ABN 648 807 443) with its principal offices located at 3 Dickinson Avenue, Croydon NSW 2132 and includes CapCo’s agents and permitted assigns.
  • Client means the person/legal entity to whom CapCo provides the Services and includes the Client’s agents and permitted assigns.
  • Development Products includes without limitation online learning modules and courses, master classes and any other product or service used to help develop capability knowledge and skills under the HCS or the Services.
  • Discovery Products includes, without limitation The Future Ready Explorer, The Future Ready Profile, The Future Ready Pathways reports, The Future Ready Dashboard, or any other derivative of these products used to help measure or report on capability mindset and disposition under the HCS or the Services. The Future Ready Profiles and Pathways reports provide guidance on educational decisions, career related decisions, personal development, and workforce planning initiatives (including but not limited to development, recruitment, promotions, employee re-assignments, etc), but should not be relied upon exclusively for these decisions. These reports should be used as a single data point together with other important considerations relevant to decisions of this nature.
  • HCS means the Human Capability Standards and Framework published by The Institute of Working Futures and CapCo.
  • Intellectual Property Rights means intellectual property rights at any time protected by statute or common law, including copyright, trade marks, patents and registered designs, and in the case of CapCo includes without limitation, “The Human Capability Standards”, “The Human Capability Framework”, “The Future Ready Explorer”, “The Future Ready Profile”, “The Future Ready Pathways” and “The Future Ready Dashboard”, online learning content, reports, research, micro-credentials, digital badges, product guides, sales collateral and consulting advice reduced to a material form.
  • Loss includes, but is not limited to, costs (including party to party legal costs and CapCo’s legal costs), expenses, lost profits, award of damages, personal injury and property damage.
  • Products means any goods or other products supplied by CapCo including those supplied in the course of providing Services.
  • Recognition Products includes, without limitation Assurance Services, Digital Credentialing and Micro-Credentialing under the HCS or the Services.
  • Services means the services to be provided by CapCo to the Client in accordance with these terms of trade.

 

  1. General
  • These terms of trade apply to all transactions between the Client and CapCo relating to the provision of Products and Services. This includes all quotations, contracts and variations. These terms of trade take precedence over terms of trade contained in any document of the Client or elsewhere.
  • Placement of an order for Services by the Client signifies acceptance of these terms of trade.

 

  1. Invoicing and payment
  • The amount payable by the Client will be the amount set out in CapCo’s invoice.
  • The Client must pay an invoice issued by CapCo to CapCo within 30 days from date of invoice days of a valid tax invoice being issued (the Due Date) to the Client.
  • If any invoice is unpaid after the Due Date, CapCo may withhold the provision of any further Products or Services until overdue amounts are paid in full.
  • If an invoice remains unpaid after the Due Date, CapCo has the right to engage a third party debt collection service. If collectors must be retained to collect invoices, CapCo will be entitled to reasonable solicitor’s fees, court costs, and interest at the maximum rate permitted by law (Collection Agency).
  • The Client acknowledges and agrees that, if engaged, a Collection Agency may:
  • list the Client’s business details on their database; and
  • may contact the Client to engage in debt collection activities.
  • CapCo may in its complete discretion apply any payment received from the Client to any amount owing by the Client to CapCo.
  • The Client is not entitled to retain any money owing to CapCo notwithstanding any default or alleged default by CapCo of these terms of trade, including (but not limited to) provision of Products or Services to an inadequate standard or a delay in the provision of Products or Services. Nothing in this paragraph affects the Client’s rights for any alleged failure of a guarantee under the Australian Consumer Law.
  • The Client is to pay CapCo on demand interest at the rate of 10% per year on all overdue amounts owed by the Client to CapCo, calculated daily.
  • All costs and expenses associated with collecting overdue amounts, including (but not limited to) legal fees and internal costs and expenses of CapCo, are to be paid by the Client as a debt due and payable under these terms of trade.
  • The Client and CapCo agree to comply with their obligations in relation to Products and Services Tax (GST) under the A New Tax System (Products and Services Tax) Act 1999 and any other applicable legislation governing GST.

 

  1. Intellectual Property Rights
  • The Client warrants that it owns all Intellectual Property Rights pertaining to the Products or Services or has a licence to authorise CapCo to reproduce or use all copyright works or other materials the subject of Intellectual Property Rights supplied by the Client to CapCo for the purposes of providing the Products or Services. The Client indemnifies and agrees to keep indemnified CapCo against all Loss incurred by CapCo in relation to or in any way directly or indirectly connected with any breach of any other Intellectual Property Rights in relation to any material supplied by the Client.
  • Unless specifically agreed in writing between CapCo and the Client, all Intellectual Property Rights in any works created by CapCo on behalf of the Client vest in and remain the property of CapCo.

 

  1. Agency and assignment
  • The Client agrees that CapCo may at any time appoint or engage an agent to perform an obligation of CapCo arising out of or pursuant to these terms of trade.
  • CapCo has the right to assign and transfer to any person all or any of its title, estate, interest, benefit, rights, duties and obligations arising in, under or from these terms of trade provided that the assignee agrees to assume any duties and obligations of CapCo owed to the Client under these terms of trade.
  • The Client is not to assign, or purport to assign, any of its obligations or rights under these terms of trade without the prior written consent of CapCo.

 

  1. Termination
  • In addition to the express rights of termination provided in these terms of trade, CapCo may terminate these terms of trade by giving five (5) days written notice to the Client.

 

  1. Exclusions and limitation of liability
  • The Client expressly agrees that use of the Products or Services is at the Client’s risk. To the full extent allowed by law, CapCo’s liability for breach of any term implied into these terms of trade by any law is excluded.
  • CapCo gives no warranty in relation to the Products or Services provided or supplied. Under no circumstances is CapCo or any of its suppliers liable or responsible in any way to the Client or any other person for any Loss or other claims (including consequential damages or loss of revenues) as a result, direct or indirect of any defect, deficiency or discrepancy in the Products or Services. This includes their form, content and timeliness of deliveries, failure of performance, error, omission, defect, including, without limitation, for and in relation to any of the following:
  • any Products or Services supplied to the Client;
  • any delay in supply of the Products or Services; or
  • any failure to supply the Products or Services.
  • Any advice, recommendation, information, assistance or service given by CapCo in relation to the Products or Services, is given in good faith and is believed to be accurate, appropriate and reliable at the time it is given. It is provided without any warranty or accuracy, appropriateness or reliability. CapCo does not accept any liability or responsibility for any Loss suffered as a result of the Client’s reliance on such advice, recommendation, information, assistance or service.
  • To the fullest extent permissible at law, CapCo is not liable for any direct, indirect, punitive, incidental, special, consequential damages or any damages whatsoever including, without limitation, damages for loss of use, data or profits, arising out of or in any way connected with the provision of or failure to provide Products or Services, or otherwise arising out of the provision of the Products or Services, whether based on terms of trade, negligence, strict liability or otherwise, even if CapCo has been advised of the possibility of damages.
  • The Australian Consumer Law may give to the Client certain guarantees. Where liability for breach of any such guarantee can be limited, CapCo’s liability (if any) arising from any breach of those guarantees is limited with respect to the supply of Products, to the replacement the Products or the costs of resupply or replacement of the Products, or with respect to Services to the supply of Services again or cost of re-supplying the Services again.

 

  1. Indemnity
  • The Client indemnifies and keeps indemnified CapCo, its servants and agents in respect of any claim or demand made or action commenced by any person (including, but not limited to, the Client) against CapCo or, for which CapCo is liable, in connection with any Loss arising from or incidental to the provision of Products or Services or the subject matter of these terms of trade.
  • This provision remains in force after completion of the Products or Services or the termination of these terms of trade.

 

  1. Privacy
  • CapCo protects the privacy of the Client in accordance with Australian Privacy Principles under the Privacy Act 1988 (Cth) and CapCo’s privacy policy which is accessible here: https://capability.co/privacy/. That privacy policy sets out how CapCo uses and stores any personal information provided, or made available, to it and how the Client may request access to any personal information which CapCo may hold.
  • CapCo’s online learning content and any Development Products is hosted on the Cypher Learning Management Platform. The terms and conditions that relate to this service provision (including how it handles personal information) are found here: https://www.cypherlearning.com/terms.
  • CapCo may request feedback from clients and users to improve the quality of its products and services. Feedback may be requested as a part of the product experience or via surveys or other collection techniques after users have engaged with CapCo’s product. All such end user feedback will be anonymised.
  1. Disclaimers
    • A: HCS
      • The HCS are the product of decades of research into the human capabilities required for the future of work and continue to evolve based on the latest research. The HCS identify, in a broad capacity, independent of profession, industry or job, the most important human capabilities required for the work of today and for the work of the future.
      • The HCS cannot be relied upon by the Client exclusively to identify every capability for every job required for the work of today or the future of work.
      • The HCS does not capture technical capabilities.
      • CapCo recognise that its clients (including the Client) may require capabilities not articulated by the HCS.
      • The Client must consider other relevant data points applicable to it outside of the Services provided by CapCo when making any decisions that involve the use of the HCS.

 

  • B: Discovery Products
    • CapCo accepts no liability for educational, career or subject related decisions that stem from referring to the Discovery Products.
    • The Client agrees to provide sufficient support to its users and customers (collectively, Respondents) that complete the Future Ready Explorer and receive a profile report, e.g. appropriate communication with the prospective respondents and access to staff that can help adequately debrief respondents following receipt of their Profile, in order to protect the wellbeing of the individual completing the profile.
    • The Client acknowledges the Future Ready Explorer, Discovery Products and any related assessment reports, are fit for purpose and accepts sole responsibility for the psychological welfare of any Respondent completing the assessment.

     

  • C: Recognition Products
    • Assurance Audit is a service that involves an audit of the Client’s existing training and development courseware and assessment methodologies and determines the extent to which this capture and meet the HCS. An Assured training and development program, together with appropriate ongoing evidence submission and assessment, may be eligible for a digital micro-credential that can be used as credit toward a subject at a participating CapCo partner university.
    • The quality and accuracy of an Assurance Audit is solely dependent on the quality and substance of the materials and information provided to CapCo. by the Client.
    • Any changes recommended by CapCo to the Client to make amendments to the Client’s training and development courseware and assessment to satisfy the HSCS, must be made as instructed by CapCo to meet the standards set out in the HCS.
    • The Client must notify CapCo if any element of the training and development courseware or assessment methodology changes after the time of any Assurance Audit in order that CapCo may determine if such change or changes impacts the ability to meet the HCS.
    • If the Client makes a change to training and development courseware, or delivery or assessment methodologies delivered under the Services, without CapCo’s prior written approval. CapCo reserves the right to halt any further credentialing of Respondents and to rescind credentials previously issued from when the training and development courseware, delivery or assessment methodologies were changed.
    • While a micro-credential may entitle a Respondent to a subject credit at a participating CapCo partner university, the Respondent must satisfy any institution defined entry requirements for acceptance for enrolment in such course before the credit can be applied.
    • Each CapCo partner university offers credit only to specified degrees and each also offers distinct ratios of micro-credentials to subject credits, e.g. some degrees require that multiple micro-credentials must be earned to generate a single subject credit.
    • The full list of university courses eligible for credit and associated micro-credential to credit ratio is available from CapCo on request.
    • Any digital badges issued by CapCo must not be modified or adapted in any way. Such badges form part of CapCo’s Intellectual Property Rights.
    • CapCo partner universities may amend the number of micro-credentials required for subject credit for a Respondent or the range of courses that credit applies to at any time. CapCo will advise Clients when more credentials are required, or subjects are withdrawn from the relevant program. Micro-credentialed Respondents will have up to 12 months to redeem any CapCo partner university credit.

 

  1. Miscellaneous
  • These terms of trade are governed by the laws of New South Wales, and each party irrevocably submits to the exclusive jurisdiction of the courts there.
  • These terms of trade supersede all oral and written negotiations and communications by and on behalf of either of the parties.
  • In entering into these terms of trade, the Client has not relied on any warranty, representation or statement, whether oral or written, made by CapCo or any of its employees or agents relating to or in connection with the subject matter of these terms of trade.
  • If any provision of these terms of trade at any time is or becomes void, voidable or unenforceable, the remaining provisions will continue to have full force and effect.
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