IMPORTANT: PLEASE READ CAREFULLY – THIS IS A LEGALLY BINDING CONTRACT BETWEEN EDSMART AND YOU
This Agreement contains all of the contractual terms on which EdSmart will provide the Service, which includes use of the EdSmart Software, to you and which governs the relationship between you and EdSmart.
By logging into the Service you agree to the terms of this Agreement governing your use of the Service. If you are entering into this agreement on behalf of a company or other legal entity that is named as the Subscriber, you represent that the entity lawfully exists and you have the authority to bind the entity as the named Subscriber to this Agreement, in which case the terms “you” or “your” shall refer to that entity.
If the entity does not lawfully exist or you do not have such authority, or if you do not agree with the terms of this Agreement, you may not use the Service.
Definitions that appear in clause 12 at the end of this Agreement will apply unless the context indicates a contrary intention.
- ACCEPTANCE OF THIS AGREEMENT
1.1 By installing, downloading or using the Service, you further acknowledge your agreement to be bound by the terms of this Agreement. If you do not wish to accept this Agreement, you must not install, download or use the Service
- SUBSCRIBER AND REGISTERED USERS
2.1 Authority to Use Service
Only the Subscriber and its Registered Users are entitled, and have authority, to use the Service under this Agreement.
2.2 Registration of Registered Users
(a) A Registered User who has accepted this Agreement, and been accepted by EdSmart as a Registered User of the Service will be issued with a User Login to enable the Registered User to use the Service.
(b) Each Registered User who is to use or is using the Service warrants to EdSmart that:
(i) you are older than thirteen years old;
(ii) you are a human being. (Accounts registered by “bots” or other automated methods are not permitted);
(iii) you have provided your legal full name, a valid email address, and any other information requested in order to complete the signup process;
(iv) all the information you have provided as part of your registration is accurate and correct.
(c) A Registered User’s User Log in cannot be shared or used by more than one Registered User but may be reassigned from time to time to new Registered Users who are replacing former Registered Users who have terminated employment or otherwise changed job status or function and no longer use the Service.
- YOUR LICENCE TO USE THE SERVICE
3.1 EdSmart licences you to use the Service for your non-exclusive, non-transferable, worldwide use, solely for your own internal business purposes, subject to the terms of this Agreement. All rights not expressly granted to you are reserved by EdSmart.
3.2 You must not:
(a) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Service or the Content in any way;
(b) modify or make derivative works based upon the Service or the Content;
(c) create Internet “links” to the Service or “frame” or “mirror” any Content on any other server or wireless or Internet-based device except where this is a part of an integration authorised by EdSmart
(d) reverse engineer or access the Service in order to:
(i) build a competitive product or service,
(ii) build a product using similar ideas, features, functions or graphics of the Service, or
(iii) copy any ideas, features, functions or graphics of the Service.
3.3 You may use the Service only for your internal business purposes and must not:
(a) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws;
(b) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or violating third party privacy rights;
(c) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs;
(d) interfere with or disrupt the integrity or performance of the Service or the data contained therein;
(e) attempt to gain unauthorised access to the Service or its related systems or networks; or
(f) access, or permit any other person to access, the Service for any purpose or activity of an illegal, fraudulent or defamatory nature.
- PROVISION OF THE SERVICE – EDSMART OBLIGATIONS TO REGISTERED USERS
4.1 The Service is hosted by Microsoft Azure and is subject to the Service Level Agreement as published by Microsoft from time to time at:
4.2 The Provider will use commercially reasonable efforts to make your EdSmart account continuously available on a 24 hour, every day basis.
4.3 EdSmart will provide a permanent connection between the EdSmart Server and the Internet. EdSmart will endeavour to ensure that the connection is continuously available on a 24 hours, everyday basis, however, EdSmart is not responsible or liable for any interruption, unavailability or downtime of that connection resulting from problems inherent in the use of the Internet and electronic communicatons.
4.4 The status of the EdSmart Service is available at all times at:
(a) The Provider will provide email and telephone support to school staff during business hours 8.30am to 5pm AEST
(b) All email requests must be via the Provider’s online support ticket system to enable easy control over support requests
(c) All Support supplied by the Provider will be provided remotely unless expressly agreed otherwise
4.6 Save as provided in this clause, or unless otherwise agreed in writing between you and EdSmart, EdSmart is not responsible for providing any other hardware, software, peripheral equipment, Internet connection or any other goods or service which is or may be required for using the Service.
4.7 EdSmart may engage agents or sub-contractors in connection with the supply of all or any part of the Service to you.
- ACCESS TO AND USE OF THE SERVICE – YOUR OBLIGATIONS TO EDSMART
5.1 Other than what EdSmart will provide under clause 4, you are responsible for providing and maintaining at your own cost your own telecommunications line, communications equipment, hardware, software, Internet connection service and all other equipment or service which is compatible with, and required for access to and use of, the Service.
5.2 You will comply with all reasonable directions issued by EdSmart pertaining to your access and use of the Service.
5.3 You acknowledge, agree with and undertake to EdSmart that:
(a) all Intellectual Property in the EdSmart Software, the Service and the Content is and remains owned by EdSmart and you do not acquire any rights or title or ownership in the EdSmart Software, the Service or the Content other than a non-exclusive restricted license to use the EdSmart Software and the Service in accordance with this Agreement;
(b) all Intellectual Property in any feedback, comments or recommendations provided to EdSmart by you or any other Registered User that relates to the Service will also be owned by EdSmart;
(c) you will not copy, reproduce, translate, adapt, modify, reverse-assemble or reverse-compile all or any part of the EdSmart Software, the Service or the Content, or allow or cause a third party to do any of the above, without the prior written consent of EdSmart, except for making one copy for back-up or archival purposes only;
(d) you will not alter or delete or interfere with any copyright or trade mark notices which appear on or are depicted in the EdSmart Software, the Service or the Content;
(e) you will inform EdSmart if you become aware of any improper or unauthorised use of the Service;
(f) you will adopt and maintain reasonable systems and procedures for the safe, secure and proper use, supervision and control of the EdSmart Software, the Service and the Content by you and your officers, employees or agents including protecting the EdSmart Software, the Service and the Content in your possession from unauthorised access or misuse by any other person; and
(g) you will accept and install any upgrades or new releases of the EdSmart Software that are provided to you by EdSmart (at no cost) for maintaining or enhancing the functionality of the Service. Those upgrades or new releases will then be licensed to you on the terms of this Agreement.
- SUBSCRIPTION PAYMENTS
6.1 Payment Currency
All subscription fees are payable in Australian dollars unless otherwise arranged
6.2 Monthly Subscribers
Monthly subscribers will pay monthly subscription fees in advance.
6.3 Annual subscribers
Annual subscribers will pay subscription fees for the twelve months in advance.
6.4 Per Registered User Fees
Some pricing plans for EdSmart include a monthly fee per Registered User. You are responsible for paying for all Registered Users whether or not such Registered Users are actively using the Service.
Invoiced subscriptions and credit terms are only available at the discretion of EdSmart, and companies agree to EdSmart conducting a credit check and any other investigation as to their credit history.
6.6 Incorrect Billing
If you believe your bill is incorrect you must notify this to EdSmart in writing to [email protected] within 14 days of the invoice date.
Please choose carefully. EdSmart does not give refunds just because you change your mind. However, we offer a seven day cooling off period. You may cancel your subscription to the Service at any time for seven days after joining, and request a full refund, which will be provided within 14 days of the request.
If you paid your subscription via credit card, your card will be credited. If you paid with a check, your refund will be sent to you by company check. We may require you to provide proof of purchase, for example, a copy of your tax invoice/receipt, or specific details that enable us to be sure the transaction is genuine.
All pricing terms are confidential, and you agree not to disclose them to any third party.
6.9 Obligation To Pay
It is your responsibility to ensure your subscription fees and any other fees associated with your use of EdSmart are paid at the correct date, and that EdSmart is provided with accurate and correct payment information sufficient to process payments when they fall due.
Non-payment of fees when due is cause for suspension or cancellation of the Service.
6.10 Failure to Pay Invoiced Subscriptions
For invoiced Registered Users, payment for all invoices is required within 30 days from the date displayed on the invoice, unless otherwise arranged with EdSmart. EdSmart reserves the right to:
(a) suspend invoiced subscriptions with notification to the client when payment is not made within 30 days;
(c) continue to charge the applicable monthly fees until the full amount and account is settled;
(d) recover EdSmart’ collection costs; and
(e) close delinquent accounts and delete associated Subscriber Data.
Your use of the Service requires that EdSmart collects and holds certain information as to your identity and details of your computer system. You agree that EdSmart may use or disclose that information lawfully and by fair means for the purpose of:
(a) helping EdSmart efficiently and effectively deliver and improve on the Service (“primary purpose”); or
(b) any other purpose (“secondary purpose”) if you would reasonably expect EdSmart to use or disclose that information for that secondary purpose and the secondary purpose is related to the primary purpose; or
(c) sending you news, information about EdSmart’ activities and other general promotional material which EdSmart believes may be of interest to you.
- SUBSCRIBER DATA
8.1 The Subscriber has sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Subscriber Data.
8.2 EdSmart does not own the Subscriber Data and EdSmart shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Subscriber Data. EdSmart cannot guarantee and does not warrant that all Subscriber Data stored in or transmitted via the System are totally secure against hacking or other improper activity over the Internet.
8.3 EdSmart reserves the right to withhold, remove and/or discard Subscriber Data with notification to the customer for any breach, including, without limitation, your non-payment. Upon termination for cause, your right to access or use Subscriber Data immediately ceases, and EdSmart shall have no obligation to maintain or forward any Subscriber Data.
- LIABILITY ISSUES
9.1 No External Representations
(a) You acknowledge to and agree with EdSmart that you have exercised your own independent assessment and judgment in registering as a Registered User of the Service and that you have not relied upon any representation made by EdSmart in relation to the Service that is not expressly stated in this Agreement.
(b) EdSmart provides the Service “as is” and represents only that the Service will in material respects substantially perform in accordance with its intended purpose. However, EdSmart does not guarantee that the Service will continuously or will always perform or operate free of any error.
(c) Any and all other terms, warranties or representations, including any warranties of title, quality, merchantability, fitness for a particular purpose or non-infringement, if any, made by EdSmart either before or after the making of this Agreement, and whether made in writing or verbally, or implied by statute or otherwise, relating in any way to the Service are excluded from this Agreement.
(d) If any statute implies into this Agreement any implied term which cannot be lawfully excluded, that implied term will apply to this Agreement. However, the liability of EdSmart for any breach by it of that implied term will be limited to the maximum extent permitted by law.
9.2 Limitation of Liability
EdSmart will not be liable in contract, tort, equity, strict liability or any other way to you or to any of your officers, employees, agents or consultants for or in respect of any loss or damage (including without limitation any loss of profit, data, consequential or incidental loss or damage) to any property or business or death or personal injury, however that may be caused, which may be suffered or incurred or which arises directly or indirectly from or in consequence of the supply of the Service to you or the use of the Service, and regardless of whether or not EdSmart is advised of any such loss or damage.
You will at all times indemnify and hold harmless EdSmart and its subsidiaries, affiliates, officers, employees and agents (“those indemnified”) from and against any loss (including reasonable legal costs and expenses) or liability incurred or suffered by any of those indemnified arising from directly or indirectly any breach by you of your obligations under this Agreement or any wilful, unlawful or negligent act or omission made by you or any of your officers, employees, agents or consultants or any other person for whose acts or omissions you are vicariously liable, relating to the use of the Service.
10.1 EdSmart may terminate this Agreement immediately by notice in writing to you if:
(a) you are in breach of any term of this Agreement and that breach is not remedied within 7 days of EdSmart notifying you of the breach; or
(b) you become, threaten or resolve to become, or are in jeopardy of becoming, subject to any form of insolvency administration.
10.2 You may terminate this Agreement immediately by notice in writing to EdSmart by email to [email protected] at any time.
10.3 Upon termination of the Agreement:
(a) EdSmart will be regarded as discharged from any further obligations under this Agreement;
(b) termination does not affect any additional rights or remedies which EdSmart may have or pursue under this Agreement or at law;
(c) you will immediately cease using the Service and destroy any copies of the EdSmart Software in your possession;
(d) EdSmart will delete your account and, if requested, deliver to you all data associated with the account, and then destroy all data associated with the account; and
(e) Unused portions of pre-paid subscription fees will not be refunded except in accordance with our Refund policy in clause 6.7.
11.1 Use Of Service In Foreign Jurisdictions
EdSmart makes no representation that the products, services and other materials available through the Service are appropriate or available for use in all countries, and access to them from countries where their contents or use is illegal is prohibited. It is your responsibility to satisfy yourself that your use of the Service will not infringe any applicable local laws and regulations in your country, or jurisdiction of operation.
11.2 Force Majeure
EdSmart will not be liable for any delay or failure to perform its obligations under this Agreement which is due to force majeure. If a delay or failure by EdSmart to perform its obligations is caused by force majeure, the performance of those obligations will be suspended.
11.3 Assignment and Novation
This Agreement must not be assigned or novated by you without written consent from EdSmart. EdSmart may consent to the assignment or novation of this Agreement by you subject to such conditions as it chooses to impose.
11.4 Entire Agreement
This Agreement constitutes the entire agreement between EdSmart and you relating to the Service and supersedes any and all prior representations, agreements and understandings, whether verbal or in writing.
11.5 Applicable Law
This Agreement will be governed by and construed according to the law of the State of Victoria and you submit to the jurisdiction of the Courts of the State of Victoria.
(a) Notices under this Agreement may be delivered by hand, by mail, by facsimile or by Email.
(b) Notice will be deemed given:
(i) in the case of hand delivery, at the time of delivery to the recipient;
(ii) in the case of posting by mail, 3 days after the date of dispatch of the notice by the sender;
(iii) in the case of facsimile, upon receipt of a clear transmission confirmation report by the sender if received during Business Hours, or otherwise at the commencement of Business Hours on the next Business Day;
(iv) in the case of Email, upon receipt by the sender of a clear delivery report if the report is received within Business Hours or otherwise at the commencement of Business Hours on the next Business Day.
If any provision of this Agreement is held to be invalid, unenforceable or illegal for any reason, then that provision will be deemed to be deleted and this Agreement will otherwise remain in full force and effect apart from that provision.
11.8 Survival of Agreement
(a) Any term of this Agreement which is capable of having effect after the termination of this Agreement will remain in full force and effect following the termination of this Agreement.
(b) Subject to any provision to the contrary, this Agreement will be of benefit to and binding upon you and EdSmart and our respective successors, trustees, permitted assigns or legal personal representatives.
(a) No term of this Agreement will be deemed to be waived except by notice in writing signed by a party.
(b) Any failure by EdSmart to enforce any term of this Agreement, or any delay or indulgence granted by EdSmart to you will not be construed as a waiver by EdSmart of its rights under this Agreement.
(c) A waiver by EdSmart of a breach by you will not prejudice its rights in respect of any subsequent breach of this Agreement by you.
(a) Any dispute arising in connection with this Agreement which cannot be settled by negotiation between EdSmart and you or our respective representatives will be submitted to arbitration in accordance with the rules for the conduct of commercial arbitrations. During such arbitration, both parties may be legally represented.
(b) Prior to referring a matter to arbitration, you and EdSmart agree to explore in good faith the prospect of resolution of the dispute with or without mediation.
(c) Nothing in this clause will prevent EdSmart from seeking urgent equitable relief before an appropriate court or collection proceedings for any unpaid fees or charges.
(a) EdSmart reserves the right to modify the terms of this Agreement, pricing and other policies associated with EdSmart. EdSmart will give 30 days notice of any proposed amendment, and will notify relevant subscribers via the web site and email bulletins.
(b) EdSmart reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Service (or any part thereof) with notification to the client.
In this Agreement, the following definitions apply:
“EdSmart” means EdSmart.com and any licensees appointed by EdSmart.com for the development, marketing and distribution of the Service.
“EdSmart Software” means the EdSmart proprietary computer software provided by EdSmart to be used under licence by a Registered User as an integral component of the Service.
“Content” means all information whether text, graphics, videos, diagrams or information in any other form contained on the www.EdSmart.com web site, including information related to the EdSmart Service and EdSmart business.
“Force Majeure” means any circumstance beyond the reasonable control of a person which occurs without the fault or negligence of the person and will include, but is not limited to, acts of God, lightning strikes, earthquakes, floods, storms, explosions, fires and any natural disaster, acts of war, riots, strikes, malicious damage or sabotage.
“Intellectual Property” means any and all intellectual property rights subsisting anywhere in the world and includes copyright, trade mark, design, patent, semi-conductor or circuit layout rights.
“Internet” means the worldwide connection of computer networks known as the Internet.
“Registered User” means a person who is registered by EdSmart as a user of the Service under clause 2.
“Registered User Log In” means a unique user name and password issued by EdSmart to a Registered User to access the Service as part of a Subscription.
“Service” means the internet based online marketing management tool using the EdSmart web site www.EdSmart.com, and the services provided through that web site and includes the EdSmart Software that is hosted on the EdSmart servers and/or downloaded by the Registered User.
“Subscriber” means a person or organisation that has submitted a subscription application to EdSmart to access the Service.
“Subscriber Data” means any data, information or material that is submitted to the Service in the course of using the Service by Registered Users.
Effective from 7 May 2018