Terms and Conditions

General Terms and Conditions 

This Agreement constitutes a binding contract on You and governs Your use of and access to the Services by You, Your Administrators and End-Users, whether in connection with a paid or free trial subscription to the Services. 

By accepting this Agreement, either by accessing or using a Service, Trial Service, or authorising or permitting any of Your End-Users to access or use a Service, You agree to be bound by this Agreement. If You are entering into this Agreement on behalf of a company, organisation or another legal entity (an “Entity”), You are agreeing to this Agreement for that Entity and representing to DEKRA Training Academy that You have the authority to bind such Entity and its Affiliates to this Agreement, in which case the terms “Subscriber,” “You,” “Your” or a related capitalised term herein shall refer to such Entity and its Affiliates, but subject to section 2.1 below. If You do not have such authority, or if You do not agree with this Agreement, You must not accept this Agreement and may not use any of the Services. 

1. Definitions 

When used in this Agreement with the initial letters capitalised, in addition to the terms defined elsewhere in this Agreement, the following terms have the following meanings: 

Account: means any accounts created on behalf of Subscriber within the Services. 

Administrator: means an individual authorised by the DEKRA Training Academy to access your account to manage your End Users identified through a unique login. 

Agreement: means the General Subscription Agreement together with any and all Order Forms agreed to by You, as well as Schedules 1 and 2 to this Agreement, and all as may be amended or updated from time to time pursuant to section 12.3. 

Authoring Software: means the software that We use to create learning Content. We reserve the right to change this software and any time. 

Content: means but not limited to, any text, question bank, image, animation, video, photographs and audio that is used to deliver a learning outcome. 

Confidential Information: means all information disclosed by You to or by DEKRA Training Academy to You which is in tangible form and labelled “confidential” (or with a similar legend) or which a reasonable person would understand to be confidential given the nature of the information and circumstances of disclosure, including, but not limited to, information relating to DEKRA Training Academy security policies and procedures. For purposes of this Agreement, this Agreement as well as Service Data shall be deemed Confidential Information. Notwithstanding the foregoing, Confidential Information shall not include information that (a) was already known to the receiving Party at the time of disclosure by the disclosing Party; (b) was or is obtained by the receiving Party by a third party not known by the receiving Party to be under an obligation of confidentiality with respect to such information; (c) is or becomes generally available to the public other than by violation of this Agreement or another valid agreement between the Parties; or (d) was or is independently developed by the receiving Party without use of the disclosing Party’s Confidential Information. 

Documentation: means any written or electronic documentation, images, video, text or sounds specifying the functionalities of the Services or describing Service Plans, as applicable, provided or made available by DEKRA Training Academy to You in the applicable DEKRA Training Academy help centre(s) and documentation websites. 

End-User: means any natural with whom Subscriber interacts using a Service or whom Subscriber permit or allow to use the Services. 

Fees: means the Subscription Fees and any other costs or charges which We are entitled to invoice You for under the express terms of this Agreement. 

Order Form: means any of Our generated service order forms executed or approved by You with respect to Your subscription to a Service, which form may detail, among other things, the number of End Users to use a Service under Your subscription to a Service. 

Party: means a party to this Agreement including their successors and permitted assigns, but subject to section 17 (Rights of Third Parties). 

Payment Agent: means the payment gateway Stripe. 

Service(s): means the products and services that are ordered by You online through a link or via an Order Form referencing this Agreement, whether on a trial or paid basis, and made available online by Us, via the applicable subscriber login link and other web pages designated by Us, including, individually and collectively, the applicable Software, updates, API, Documentation, and all applicable Associated Services that You have subscribed that are provided under this Agreement. “Services” exclude Third Party Services as that term is defined in this Agreement and Associated Services that are not provided under this Agreement. From time to time the names and descriptions of the Services or any individual Service may be changed. To the extent Subscriber is given access to such Service as so described by virtue of a prior Order Form or other prior acceptance of this Agreement, this Agreement shall be deemed to apply to such Service as newly named or described. 

Service Data: means electronic data, text, messages, communications or other materials submitted to and stored within a Service by You and End-Users in connection with Your use of such Service, which may include, without limitation, Personal Data. 

Site: means a website operated by DEKRA Southern Africa Oceania LTD, including www.dekratraining.co.nz, https://www.dekralearning.com as well as all other websites that DEKRA Southern Africa Oceania LTD operates. 

Software: means software provided by DEKRA Southern Africa Oceania LTD (either by download or access through the Internet) that allows End-Users to use any functionality in connection with the applicable Service or Content. 

Subscriber, You, Your: means you Our customer, being the Party other than DEKRA Southern Africa Oceania LTD signing this Agreement or otherwise agreeing to being bound by its terms. 

Subscription Term: means the period after a 14-day trial during which You have agreed to subscribe to the Service, and if no particular term has been agreed in writing between You and Us, then the term shall be a month-to-month basis with one month in advance. 

Subscription Fees: means the fees, as published on the Site, which We charge You relating to Your access to and usage of the Services and calculated based on the number of End-Users in any given month and excludes all other types of Fees. 

Third Party Services: means third party products, applications, services, software, networks, systems, directories, websites, databases, and information obtained separately by You which a Service links to, or which You may connect to or enable in conjunction with a Service, including, without limitation, Third Party Services which may be integrated directly into Your Account by You or at Your direction. 

Totara Learn: means the Learning Management System (LMS) through which learning content is delivered and managed. Totara Learn is provided to DEKRA Southern Africa Oceania LTD by Kineo APAC in accordance with its Enterprise Agreement with DEKRA Southern Africa Oceania LTD 

QMS: means the Quality Management System directly relating to managing vehicle inspection outcomes as described here.

“We,” “Us” or “Our”: means DEKRA Training Academy which is part of DEKRA Southern Africa Oceania LTD as defined below. 

2. General Conditions; Access to and Use of the Services 

2.1 DEKRA Training Academy offers QMS functionality and certain online course content relating to training, work practice and related subjects. The course description is intended to indicate only the general nature of the course and does not guarantee content.  

2.2 QMS functionality is designed to fully replace your existing QMS providing you use it as intended by Us described in our QMS Guide. We have taken all reasonable steps to ensure this functionality meets the requirements of Waka Kotahi. You are solely responsible for ensuring it meets your requirements and obligations as an Inspecting Organisation appointed by Waka Kotahi. DEKRA Training Academy takes no responsibility for any loss or action by Waka Kotahi resulting from a non-compliance relating to QMS.

2.3 Dekra Training Academy reserves the right to amend the content and alter details at its discretion. Specific content may be withdrawn at any time, subject to thirty days prior notice. 

2.4  During the Subscription Term and subject to compliance by You, and End-Users with this Agreement, You have the limited, non-exclusive, non-transferrable right to access and use the Services consistent with Your Subscription Fees, for Your internal business purposes only. We will (a) make the Services available to You pursuant to this Agreement and the applicable Order Forms; (b) provide applicable standard customer support for the Services to You at no additional charge as detailed on the applicable Site and Documentation; (c) use commercially reasonable efforts to make the Services available 24 hours a day, 7 days a week, except (i) during planned downtime for upgrades and maintenance to the Services (of which We will use commercially reasonable efforts to notify You in advance both through Our Site and a notice to Your Account owner) (“Planned Downtime”); and (ii) for any unavailability caused by circumstances beyond Our reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labour problem (other than one involving Our employees), Internet service provider failure or delay, energy supplier failure or delay, Third Party Services, or acts undertaken by third parties, including without limitation, denial of service attack (“Force Majeure Event”). 

2.5 A high speed Internet connection is required for proper transmission of the Services. You are responsible at Your cost for procuring and maintaining the equipment, software and network connections that connect Your network to the Services, including, but not limited to, “browser” software that supports protocols used by Totara Learn and other Authoring Software, including the Hypertext Transfer Protocol Secure (HTTPS) protocol or other protocols used by Totara LMS, Authoring Software or Payment Agent, and to follow procedures for accessing services that support such protocols. We are not responsible for notifying You, or End-Users of any upgrades, fixes or enhancements to any such software or for any compromise of data, including Service Data, transmitted across computer networks or telecommunications facilities (including but not limited to the Internet) which are not, operated or controlled by to DEKRA Training Academy or by Kineo APAC. We assume no responsibility for the reliability or performance of any connections as described in this section. DEKRA Training Academy does not warrant that the Services will always be available uninterrupted or error free. 

2.6 In addition to complying with the other terms, conditions and restrictions set forth below in this Agreement, You agree not to (a) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Services available to any third party, other than authorised End-Users in furtherance of Your internal business purposes as expressly permitted by this Agreement; (b) modify, adapt, or hack the Services or otherwise attempt to gain unauthorised access to the Services or related systems or networks; (c) use the Services in any unlawful manner, including, but not limited to, violation of any person’s privacy rights; (d) use the Services to store materials, data, text, audio, video, images or other content that infringes on any person’s intellectual property rights; (e) use the Services in any manner that interferes with or disrupts the integrity or performance of the Services and its components; (f) attempt to decipher, decompile, reverse engineer or otherwise discover the source code of any Software making up the Services; (g) use the Services to knowingly post, transmit, upload, link to, send or store any content that is unlawful, racist, hateful, abusive, libellous, obscene, or discriminatory; (h) use the Services to knowingly post transmit, upload, link to, send or store any viruses, malware, Trojan horses, time bombs, or any other similar harmful software (“Malicious Software”); (i) use or launch any automated system that accesses a Service (i.e., bot) in a manner that sends more request messages to a Service server in a given period of time than a human can reasonably produce in the same period by using a conventional on-line web browser; or (j) attempt to use, or use the Services in violation of this Agreement. 

2.7 As between You and DEKRA Training Academy, You are responsible for compliance with the provisions of this Agreement by End-Users and for any and all activities that occur under Your Account. Without limiting the foregoing, You are solely responsible for ensuring that You hold all third party related rights, permits and consents as may be required for Your use of the Services to store and transmit Service Data, and that such use is compliant with all applicable laws and regulations relating to You, and End-Users. You also maintain all responsibility for determining whether the Services or the information generated thereby is accurate or sufficient for Your purposes. You agree and acknowledge that each End User will be identified by a unique username and password (“Login”). You will not share an End User Login among multiple individuals. You and are responsible for maintaining the confidentiality of all Login information for Your Account. DEKRA Training Academy reserves the right to periodically verify that Your use of the DEKRA Training Academy Services complies with the Agreement on Our Site. You will notify Us promptly if you become aware of any unauthorized use of your username and/or password. Only you may access the Service using your login details. 

2.8 In addition to Our rights as set forth in Sections 2 and 5.2, We reserve the right, in Our reasonable discretion, to temporarily suspend Your access to and use of a Service if We suspect or detect any Malicious Software connected to Your Account or use of a Service by You, or End-Users. 

2.9 You acknowledge that DEKRA Training Academy may modify the features and functionality of the Services during the Subscription Term. 

2.10 Any Service Data You enter into a Service, and any configurations or customisations made to a Service by or for You, during Your free trial will be permanently lost unless You purchase a Subscription to the same Service as covered by the trial, purchase the applicable Service, or export such Service Data, before the end of the trial period. 

2.11 You agree that Our support team are available to assist with requests related to issues or questions You have about the Service that are covered by the scope of topics in Our Help Centre on a “fair use” basis and considering the content of Our Documentation. If Your requests require knowledge or experience of Your business processes, proprietary knowledge, software, systems, or otherwise require research beyond topics covered by Our Help Centre or in Our Documentation.  

2.12 In the case of technical problems, You and Your End Users must make all reasonable efforts to investigate and diagnose problems before contacting Our support team. If You still need technical help, please check the support provided in Our Help Centre, Documentation, or failing that, email Us at  hello@dekratraining.co.nz. 

2.13 If We supply You with any third-party related applications or packages relating to web controls, integration technology, plug-ins or extensions (whether opensource or otherwise), then You agree: 

i. that You are solely responsible for deciding whether to install any upgrades or new releases of those items, and are also solely responsible for testing those items to ensure they function correctly in conjunction with any of Your other systems or software; 

ii. that any services We provide in relation to these third party items are on a reasonable endeavours basis only, and that We are not liable in any way to You or any of End-Users regarding any failure of any of these third party items to operate effectively as You intend; 

iii. that DEKRA Training Academy the right to change any of its APIs which third party applications or packages use from time to time to the extent that outdated applications or package installations may need modifying or upgrading to maintain compatibility and functionality with the latest version of Services or other APIs, and in this case, You accept that the remainder of this section 2.13 will apply to any such changes made by DEKRA Training Academy. 

3. Intellectual Property Rights 

3.1 Each Party shall retain all rights, title and interest in and to all its respective patents, inventions, copyrights, trademarks, domain names, trade secrets, know-how and any other intellectual property and/or proprietary rights (collectively, “Intellectual Property Rights”). The rights granted to You, and End-Users to use the Service(s) under this Agreement do not convey any additional rights in the Service(s) or in any Intellectual Property Rights associated therewith.  

3.2 Subject only to limited rights to access and use the Service(s) as expressly stated herein, all rights, title and interest in and to the Services and all materials – including but not limited to text, photographs, video, audio, images and any other Content – appearing via the Online Course and/or on the Website are protected by copyrights and/or other proprietary rights belonging to Dekra Training Academy and/or other third parties. You agree to abide by all applicable laws regarding copyrights, trademarks, publicity rights and privacy rights in NZ. 

3.3 All Service Data will remain owned solely by You or Your associated third parties at all times. You grant Us a limited licence to use all Service Data solely for the purpose of supplying the Services to You and End-Users, and other third parties acting on Your behalf. 

4. Billing; Plan Modifications and Payments 

4.1 Unless agreed otherwise in writing separately between You and Us, or unless otherwise indicated otherwise on an Order Form referencing this Agreement,) and subject to Section 4.2, all Fees associated with Your access to and use of Services shall be paid on a monthly basis one month in advance upon commencement of Your Subscription Term. If You fail to pay any Fees due on time, or within five (7) business days after Our written notice to You that payment is due or overdue, or if You do not update Your payment information upon Our request, in addition to Our other remedies, We may suspend or terminate access to and use of such Service by You and End-Users. We may also charge You for Our costs of recovery, including Our legal fees. 

4.2 If You choose to increase the number of End Users authorised to access and use the Service during Your Subscription Term (a “Subscription Upgrade”), any incremental Subscription Fees associated with such Subscription Upgrade will be prorated over the remaining period of Your then current Subscription Term, charged and payable upon implementation of such Subscription Upgrade. In any future Subscription Term, Your Subscription Fees will reflect any such Subscription Upgrades. 

4.3 No refunds or credits for any Fees will be provided to You if You elect to decrease the number of End Users authorised to access and use the Service during the Subscription Term. 

4.4 This section will apply when We allow You to pay by credit card as addressed in this section. If You pay by credit card or certain other payment instruments, the Services provide an interface for the Account owner to change credit card information (e.g. upon card renewal). The Account owner will receive a receipt upon each receipt of payment by the Payment Agent, to track subscription status. You hereby authorise the Payment Agent to bill Your credit card or other payment instrument in advance on a periodic basis in accordance with the terms of the Subscription for the Services provided until Your subscription to the Services terminates, and. You agree to promptly update Your Account information with any changes (for example, a change in Your billing address or credit card expiration date) that may occur. The Payment Agent uses a third-party intermediary to manage credit card processing and this intermediary is not permitted to store, retain or use Your billing information except to process Your credit card information for the Payment Agent. 

4.5 Payments made by credit card, debit card or certain other payment instruments for the Services are billed and processed by the DEKRA Training Academy Payment Agent. To the extent the Payment Agent is not, DEKRA Training Academy the Payment Agent is acting solely as a billing and processing agent for DEKRA Training Academy and on behalf of and shall not be construed to be providing the applicable Service. 

4.6 Any Subscriber that mandates DEKRA Training Academy to use a vendor payment portal or compliance portal which charges DEKRA Training Academy a subscription fee or a percentage of any uploaded invoice as a required cost of doing business, shall be invoiced by DEKRA Training Academy for the cost of this fee. 

5. Cancellation and Termination 

5.1 You may cancel your Subscription or Trial by providing notice, in accordance with this Agreement, three (3) working days prior to the date of the end of such Subscription Term. Once cancellation is received the Subscription will be valid for the days that have been pre-paid, this will be a full month or part of a month.  

5.2 Dekra Training Academy reserves the right to cancel the Online Course by giving you notice in writing (including by email) at any time by giving three months’ notice. Dekra Training Academy will refund all fees pre-paid for any cancelled training. Dekra Training Academy’s liability when it cancels the course will be limited to a refund of the Fee that has been prepaid.  

6. Limitation of Liability 

6.1 Under no circumstances and under no legal theory (whether in contract, tort, negligence or otherwise) will either party to this Agreement, or their officers, directors, employees, Administrators, service providers, suppliers or licensors be liable to the other Party or any third party for any lost profits, lost sales or business, lost data, business interruption, loss of goodwill, or for any type of indirect, incidental, special, exemplary, consequential or punitive loss or damages, or any other loss or damages incurred by the other Party or any third party in connection with this Agreement or Services, regardless of whether such Party has been advised of the possibility of or could have foreseen such damages. 

7. Law and Venue 

7.1 This Agreement shall be governed by the laws of New Zealand, without reference to conflict of laws principles. Any disputes under this Agreement shall be resolved in the courts of New Zealand. We may elect to have any dispute between Us resolved by Mediation and/or Arbitration in New Zealand in English, with a single Mediator / Arbitrator, and if We do so elect by written notice to You, then that process will apply. You hereby expressly agree to submit to the exclusive personal jurisdiction of this jurisdiction for the purpose of resolving any dispute relating to this Agreement or access to or use of the Services by You or End-Users. 

8. Rights of Third Parties 

8.1 Subject to section 2.3 the parties agree that a person who is not a party to this Agreement (including any Administrator, End-User) has no right or legal standing to enforce any provision of this Agreement against either party.