Condition of use

EDAPT EDUCATION CONDITION OF USE

Effective: March 2021

 

1. Definitions and Interpretation
1.1. In this Agreement the following expressions have the following meanings, unless otherwise stated:

Agreement” means these terms and conditions as amended by us from time to time, including the Key Terms, any Schedules and any other documents expressly incorporated;

Authorised User” means each of your students, employees, agents and contractors who are authorised by you to use the Software and Services;

Business Day” means a day other than a weekend or public or bank holiday in Victoria, Australia;

Charges” means the charges set out in the Key Terms or as published by us from time to time;

Code of Practice” means a code of practice as described in, and approved under, the PDP Act.

Commencement Date” means the commencement date specified in the Key Terms, or if there is no date specified, the date that this Agreement is signed by the last of the parties to sign it;

Consultants” means any employees, contractors, agents or consultants that we use to provide the Software and/or perform the Services;

Delivery Date” means an estimated delivery date for the provision of a Service, as set out in Schedule 1;

Developed IP” is defined in clause 6.3;

Health Privacy Principles” means the health privacy principles set out in the HR Act;

HR Act” means the Health Records Act 2001 (Vic);

Information Privacy Principles” means the information privacy principles set out in the PDP Act;

Intellectual Property Rights” means all present and future intellectual and industrial property rights throughout the world of whatever nature (whether or not registered or registrable) including but not limited to all rights in respect of technical information, know-how, copyright, trade marks, designs, patents, domain names, business names, logos, drawings, trade secrets, software code, source code, object code, software design, technical algorithms, the right to have confidential information kept confidential or other proprietary rights, or any rights to registration of such rights;

PDP Act” means the Privacy and Data Protection Act 2014 (Vic).

Privacy Laws” means the Privacy Act 1988 (Cth), Privacy and Data Protection Act 2014 (Vic) and the General Data Protection Regulation (EU 2016/679) (as applicable);

Provider IP” is defined in clause 6.2;

Records” means written records held, produced or created by us in the course of performing the our obligations under this Agreement;

Records Act” means the Public Records Act 1973 (Vic);

Related Bodies Corporate” has the meaning given in the Corporations Act 2001 (Cth);

School Data” has the meaning in clause 6.5;

Services” means the services that we provide to you under this Agreement, including associated deliverables, as set out in Schedule 1;

Software” means the software we provide under this Agreement as defined in the Key Terms and which includes any associated software, technology, code and all Intellectual Property Rights contained therein; and

Term” means the term of this Agreement as defined in the Key Terms

2. Use of the Software

2.1. You will not, and you will ensure the Authorised Users will not:

(a) modify the Software or merge any aspect of the Software with another programme other than as expressly provided under this Agreement;

(b) record, reverse engineer, copy, duplicate, reproduce, create derivate works from, frame, download, display, transmit or distribute any of the Software, the source code of the Software or any documents, manuals or setup instructions provided with the Software or in relation to the Services;

(c) licence, sell, rent, lease, transfer, assign or otherwise commercially exploit the Software or the Services;

(d) engage in unlawful behaviour, including unauthorised access to or use of data, services, systems or networks, including any attempt to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures;

(e) access, store, distribute or transmit:

I viruses, worm, trojan or other malicious code that corrupts, degrades or disrupts the operation of the Software;

II material that is unlawful, unethical, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive or a contravention of the rights of any third party;

III material that facilitates illegal activity; or

IV material that abuses or causes damage or injury to any person or property;

(f) provide Software login details or passwords, or otherwise provide access to the Software, to any unauthorised third party and you will take all reasonable steps to prevent unauthorised access to, or use of, the Software;

(g) share any features of the Software that are not publicly available with any unauthorised third party; and

(h) engage in any conduct on the Software that is in breach of this Agreement (or any agreements mentioned therein).

2.2. All rights granted to you under this Agreement are personal, and these rights must not be leased, assigned, sold, licensed, resold or transferred to any third party in any manner whatsoever. You must not in any way encumber or allow the creation of any mortgage, charge, lien or other security interest in respect of the Software.

2.3. The Software may be down for scheduled maintenance on Saturdays and Sundays. We will use all reasonable endeavours to notify you of any planned outages or scheduled maintenance.

2.4. Any breach of this clause 2 constitutes a breach of this Agreement and we may, at our absolute discretion, terminate or suspend your access to, and/or use of, the Software or the Services, and/or take further actions against you for breach of this Agreement.

3. Services

3.1. We will perform the Services in return for payment of the applicable Charges.

3.2. All Services will be provided based on the information and specifications supplied by you. All information that we provide is supplied in good faith, but we do not warrant or guarantee the accuracy or completeness of any information provided by us or any third party. It is not within the scope of our obligations to enquire as to, or to verify, the accuracy or completeness of information that we receive from you or any third parties.

3.3. We are not obliged to provide any Services under this Agreement that are not described in this Agreement.

3.4. We will use reasonable endeavours to provide the Services promptly or by any applicable Delivery Date or such other dates as agreed by the parties in writing. Any Delivery Date or time quoted for delivery, commencement or completion of any part of the Services is an estimate only and time will not be of the essence.

3.5. We may engage Consultants to perform our obligations under this Agreement at our discretion.

3.6. We deliver the Services by extracting data from third-party systems and applications that are utilised by your organisation on your behalf. To facilitate such extraction on your behalf, you agree to provide us with consistent and uninterrupted access to your IT systems and any ancillary applications or services. This may necessitate the creation of separate logins and user profiles.

4. Your obligations

4.1. You acknowledge that our ability to be able to provide the Software and the Services to you without delay or interruption is dependent on your full and timely cooperation. You will (and will ensure that the Authorised Users will):

(a) co-operate with and assist us in the supply of the Software and the Services;

(b) promptly provide us with full and accurate information, data and explanations as and when required;

(c) comply with all applicable laws, regulations and industry standards with respect to your activities and obligations under this Agreement;

(d) ensure that your network and systems comply with the relevant specifications and mguidelines provided by us from time to time; and

(e) comply with all reasonable directions and guidelines from us as advised from time to time.

4.2. You must procure all necessary rights from third parties, which are from time to time required in order for us to be able to provide the Software or the Services to you.

4.3. It is your responsibility to ensure that the Key Terms, invoice or any other written communications we send to you set out the correct information in relation to your business and that you notify us of any changes to this information during the Term.

5. Charges and Payment

5.1. You will pay us the Charges to access and use the Software and the Services in accordance with this Agreement.

5.2. The Charges are exclusive of GST and, unless stated otherwise, are in Australian Dollars.

5.3. If payment of the Charges is not received by any due date either described in the Key Terms or on a tax invoice provided to you, we will be entitled (without prejudice to any other right or remedy available to us under this Agreement or at law) to:

(a) withhold provision of the Services, or suspend your access to any or all of the Software of the Services, until payment of the outstanding invoice (including interest) is received by us in full;

(b) charge interest on the outstanding amount at the rate of eight per cent (8%) per annum;

(c) terminate this Agreement pursuant to clause 12.

5.4. You will make all payments for the Charges without any deduction for tax unless a tax deduction is required by law. If you are required to make a tax deduction by law, the amount due will be increased to the amount that (after making the tax deduction) upon deduction of the amount attributable to tax equals the amount which would have been due if no tax deduction had been required.

5.5. We may, at any time during the Term, increase the Charges by providing you with 60 days’ prior written notice. If you do not agree to these changes, you may terminate the Agreement by giving us thirty (30) days’ written notice no later than fourteen (14) days after the date you received written notice of the changes.

6. Intellectual Property
6.1 . Subject to clauses 2 and 6.3, we grant you a personal, non-exclusive, non-transferable and revocable license to permit the Authorised Users to access and use the Software and the Services (including the Intellectual Property Rights contained therein) throughout the world during the Term.

6.2. All rights, title or interest in and to the Software and any information or technology that may be provided to, or accessed by, you in connection with your use of the Software or Services is owned, and will remain owned, by us or our licensors (“Provider IP”). Using the Software or the Services does not transfer any ownership or rights, title or interest in and tothe Provider IP.

6.3. All Intellectual Property Rights discovered, developed or otherwise coming into existence as a result of, for the purposes of, or in connection with, the Software or the provision of any Services will automatically vest in, and are assigned to, us, including any enhancements, improvements and modifications to the Provider IP (collectively, the “Developed IP”).

6.4. You must not represent to anyone or in any manner whatsoever that you are the proprietor of the Software and/or the Provider IP.

6.5. You retain ownership rights to data and content that you provide to us, whether by uploading to the Software or otherwise (“School Data”).

6.6. You grant us a worldwide, perpetual, irrevocable, non-exclusive and royalty free license to access and use the School Data for the purpose of:

(a) performing our obligations under this Agreement;

(b) conducting research and data analytics;

(c) improving our products, services and offerings.

6.7. Where we utilise School Data in accordance with clause 6(b) and 6.6(c), we will always de-identify School Data. Data de-identification allows the use of School Data obtained by us, without the risk of users being identified. Information that is de-identified is not personal information and is compliant with the Privacy Laws.

6.8. You agree that we may refer to you, your business name, publish your logo and/or trade mark and make reference to you as a customer of ours in any communications or publications for the purposes of marketing or promoting our business.

7. Warranties

7.1. We will use reasonable endeavours to provide constant, uninterrupted access to the Software and the Services, but with any software based product, this cannot be guaranteed. We will not be responsible or liable for any direct or indirect losses or damages suffered or sustained by you as a result of, or in connection with, any interruption or delay in accessing and using the Software or the Services.

7.2. We will investigate all problems or errors in any Services, provided that you notify us in writing within seven (7) days following delivery of those Services and you give us all necessary information to conduct an investigation into the matter.

7.3. To the maximum extent permitted by law, no further warranty, condition, undertaking or term, express or implied, statutory or otherwise as to the condition, quality, performance or fitness for purpose of the Software provided hereunder is given or assumed by us other than as required at law. You acknowledge and agree that the Software and the Services are provided on ‘as is’ basis and that you will make your own investigations into whether or not the Software and the Services are fit for your purposes.

7.4. We make no representations, warranties or guarantees:

(a) that content available on, or produced by or via, the Software is accurate, complete, reliable, current, error-free or suitable for any particular purpose. This content is provided on an ‘as is’ basis and you acknowledge and agree that you exercise absolute discretion in choosing how to use this content; or

(b) as to the availability of the Software or that the Software and/or the Services are or will be free from viruses, worm, trojan or other malicious code. You are responsible for taking your own precautions in this respect.

8. Liability and Exclusions

8.1. Our total liability to you or any third party (whether based on warranty, contract, tort, statute, misrepresentation or otherwise) arising out of, or in connection with, this Agreement, for any one event or a series of related events, will be limited to the total Charges paid (excluding GST and expenses) by you to access and use the Software and the Services (as applicable) in the twelve (12) months immediately prior to the event(s).

8.2 You assume sole responsibility for your use of the Software and the Services (including any content contained therein) and for any reliance on, and use of, conclusions drawn from such use.

8.3. We will have no liability for any losses suffered or any damage caused by errors or omissions in any information or instructions provided to us by you in connection with the Software, the Services or any actions taken by us at your direction.

8.4. In no event will we be liable to you or any third party for any:

(a) loss of profits, revenue, goodwill or business, business interruption, corruption, loss or alteration of data, downtime costs, loss of use, failure to realise anticipated savings or for any indirect or consequential loss or damage of whatsoever nature, however caused;

(b) breach by you, any Authorised User or any third party of the Intellectual Property Rights of a third party or any laws, regulations or any relevant industry codes;

(c)viruses, worm, trojan or other malicious code introduced into, or transmitted to, you or any third party during the course of using the Software or the Services; or

(d) loss of or damage to any property belonging to you, any Authorised User or any third party or any personal injury or death arising out of or in connection with this Agreement.

8.5. The parties acknowledge that the limitations of liability contained in this clause 8 are a fair and reasonable allocation of the commercial risk between the parties.

9. Indemnity

9.1. You agree to indemnify and hold us, our Related Bodies Corporate and our officers, directors, employees and contractors (collectively, the “Indemnified”) harmless from and against any and all claims, actions, demands, proceedings, liabilities, losses, damages, expenses and costs that may be brought against the Indemnified or which the Indemnified must pay, sustain or incur as a direct or indirect result of or arising out of:

(a) breach by you or any Authorised User of any of your obligations under the Agreement;

(b) loss of, or damage to, any property belonging to you, any Authorised User or any third party or any personal injury or death arising out of or in connection with this Agreement;

(c) breach of any third party’s Intellectual Property Rights; or

(d) breach by you or any Authorised User of any law (including Privacy Laws).

10. Confidentiality

10.1. Each party agrees not to use or disclose confidential information received or disclosed to it by the other party in the negotiation or operation of this Agreement, save for such use or disclosure necessary and required to perform their respective obligations under this Agreement. Disclosure will be, in any event, only made to the receiving party’s employees, officers, agents or contractors to whom it is necessary to do so and who are directly involved in performing the receiving party’s obligations.

10.2. In making disclosure to persons as permitted under this clause 10, the receiving party will ensure that persons receiving the disclosing party’s confidential information will comply with the same obligations regarding confidentiality as that of the receiving party.

10.3. Information is not to be regarded as confidential, and the receiving party will have no obligation regarding confidentiality, where that information is already in the public domain or enters the public domain through no fault of the receiving party, is received from a thirdm party without any obligations of confidentiality, is used or disclosed with the prior written consent of the disclosing party, is disclosed in compliance with a legal requirement or is independently developed by the receiving party.

10.4. Any confidential information held by a receiving party will be returned to the disclosing party or destroyed at the written request of the disclosing party.

11. Privacy

11.1. We agree to be bound by the Privacy Laws, Information Privacy Principles, anyapplicable Code of Practice and the Health Privacy Principles (together, the “Privacy Obligations”) with respect to any act done or practice engaged in by us in connection with this Agreement in the same way and to the same extent as the Privacy Obligations would have applied to you in respect of that act or practice had it been directly done or engaged in by you.

11.2. We agree to be bound by the Protective Data Security Standards and will not do any act or engage in any practice that contravenes a Protective Data Security Standard or would give rise to a contravention by you in respect of any data collected, held, used, managed, disclosed or transferred by us on behalf of you under or in connection with this Agreement

11.3. You must, in connection with this Agreement:

(a) ensure that you and your employees, contractors and agents are aware of your obligations under all applicable Privacy Laws;

(b) at all times comply with your obligations under applicable Privacy Laws; and

(c) take reasonable steps to assist us to comply with our obligations under applicable Privacy Laws as may be notified to you from time to time.

11.1. We agree to be bound by the Privacy Laws, Information Privacy Principles, any applicable Code of Practice and the Health Privacy Principles (together, the “Privacy Obligations”) with respect to any act done or practice engaged in by us in connection with this Agreement in the same way and to the same extent as the Privacy Obligations would have applied to you in respect of that act or practice had it been directly done or engaged in by you.

11.2. We agree to be bound by the Protective Data Security Standards and will not do any act or engage in any practice that contravenes a Protective Data Security Standard or would give rise to a contravention by you in respect of any data collected, held, used, managed, disclosed or transferred by us on behalf of you under or in connection with this Agreement

11.3. You must, in connection with this Agreement:

(a) ensure that you and your employees, contractors and agents are aware of your obligations under all applicable Privacy Laws;

(b) at all times comply with your obligations under applicable Privacy Laws; and

(c) take reasonable steps to assist us to comply with our obligations under applicable Privacy Laws as may be notified to you from time to time.

12. Term and Terminationb

12.1. This Agreement will commence on the Commencement Date and will continue in force for the Term specified in the Key Terms unless terminated in accordance with this clause 12.

12.2. Either party may terminate this Agreement without cause at any time by providing the other party with three (3) months’ written notice.

12.3. We may terminate this Agreement (or at our discretion, the supply to you of the Software or the Services) immediately if you fail to pay any invoice and such sum remains unpaid for fourteen (14) days.

12.4. Either party may terminate this Agreement immediately by giving written notice to the other party if:

(a) the other party is in breach of this Agreement to a material extent and fails to remedy the breach within fourteen (14) days of being notified of the breach (if it is capable of being remedied); or

(b) the other party is bankrupt, in a voluntary arrangement, in liquidation or receivership or has ceased business or threatened to cease business or is otherwise insolvent.

12.5. On termination of this Agreement for any reason, we will be entitled to immediate payment for all Charges properly incurred up to the date of termination and during any applicable notice period, including any Minimum Commitment.

12.6. On the termination or expiry of this Agreement, you will return all of our confidential information, Provider IP, Developed IP and any other property belong to us in your possession, control or custody.

13. Non-Solicitation
13.1. You will not attempt to employ, either directly or indirectly or as consultants, any of our Consultants during the term of this Agreement without our prior written consent. If you are in breach of this clause, we will be entitled to terminate this Agreement in accordance with clause 12.

14. Situations or events outside our reasonable control

14.1. There are certain situations or events that may occur which will not be within our reasonable control. Where this occurs, we will notify you of these circumstances and attempt to recommence providing the Software and/or the Services (as applicable) as soon as we are able. In such circumstances there may be a delay (sometimes a substantial delay) before we can start or continue performing the Software and/or the Services.

15. Working with Children

15.1. We will and will ensure that all persons engaged or used by our business:

(a) have undertaken a satisfactory working with children check if required pursuant to the Working With Children Act 2005(Vic) or as otherwise requested by you;

(b) have undertaken a satisfactory police records check, if requested by you; and

(c) have met any additional relevant legal requirements and policies of you and/or the Department of Education and Training in relation to the suitability of persons to work with school children or within the precinct of the school.

16. Records

16.1. We agree to implement and administer a recordkeeping system that maintains complete and accurate Records for all Services supplied under this Agreement. The recordkeeping system must comply with all applicable standards issued under the Records Act.

16.2. We will securely store and ensure the integrity of all Records in accordance with all applicable standards issued under the Records Act.

16.3. We will only dispose of Records in accordance with the standards issued under the Records Act and must not dispose of any Records for at least seven years after termination or expiry of this Agreement.

17. Notices

17.1. Any notice required to be given pursuant to this Agreement will, unless otherwise stated, be in writing and be sent to the other party at the email address specified in this Agreement (or to such other address as either party may from time to time notify the other in accordance with this clause).

17.2. A notice given under clause 1 will be deemed to have been delivered 24 hours after the email is sent.

18. Dispute Resolution

18.1. If a dispute arises in relation to this Agreement, a party (“Provider”) may give the other party (“Recipient”) a written notice adequately identifying the matters in dispute (“Dispute Notice”).

18.2. Within 10 days of the Provider giving a Dispute Notice, the parties must meet informally and attempt to resolve the dispute. If a resolution is not achieved within 10 days from the informal meeting, the Provider may give the Recipient written notice requiring them dispute to be referred to mediation (“Mediation Notice”).

18.3. If a Mediation Notice is given, the parties will appoint a mediator in writing, or if the parties cannot agree on a mediator within 7 days of the Mediation Notice being served, a mediator will be appointed by the Chair of Resolution Institute or the Chair’s designated representative. The parties or their nominated representatives must attend any arranged mediation to attempt to resolve the dispute and unless otherwise agreed by the parties, the Resolution Institute Mediation Rules will apply to the mediation.

18.4. The costs of mediation will be shared equally by the parties unless otherwise agreed in writing.

18.5. If the dispute identified in the Mediation Notice is not resolved within 14 days of appointment of the mediator, either party may seek mediation again pursuant to this clause, with the parties agreeing that the mediator will make a binding resolution.

18.6. No party may commence litigation unless they have first complied with this clause, except where the party is seeking urgent interlocutory relief.

18.7. Notwithstanding the existence of a dispute, each party must continue to perform its obligations under this Agreemen

18.8. This clause 16 survives the termination or expiry of this Agreement.

19. General

19.1. Variations to this Agreement will only be effective if in writing and signed by authorised representatives of both parties.

19.2. The provisions of this Agreement that are capable of having effect after the termination or expiry of this Agreement will remain in full force and effect following the termination or expiry of this Agreement.

19.3. You must not, without our prior written consent (which will not be unreasonably withheld), assign, transfer, charge, sub-contract or deal in any other manner with all or any
of your rights or obligations under this Agreement.

19.4. If either party chooses to waive or ignore a breach of the Agreement, this will not prevent that party from taking action in respect of the same type of breach at a future date.
19.5. Nothing in this Agreement is intended to create or imply any partnership, joint venture, agency, fiduciary relationship or other relationship between the parties other than the contractual relationship expressly provided for in this Agreement. Neither we nor you will have, nor represent that it has, any authority to make any commitments of this kind on the other party’s behalf.

19.6. This Agreement, and the relationship between the parties contemplated by it, is not intended to be exclusive.

19.7. If any provision of this Agreement is held invalid or unenforceable, such provision will be deemed deleted from this Agreement and replaced by a valid and enforceable provision which so far as possible achieves the parties’ intent in agreeing to the original provision. The remaining provisions of this Agreement will continue in full force and effect.

19.8. This Agreement is governed by the laws of Victoria, Australia and the parties submit to the

19.9. This Agreement may be executed electronically and in any number of counterparts. All counterparts together will be taken to constitute one instrument.

19.10. This Agreement constitutes the entire agreement between the parties in respect of the subject matter of this Agreement and supersedes and replaces any prior written or oral agreements, representations or understandings. The parties confirm that they have not relied on any representation that is not expressly incorporated into this Agreement.

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