Authorised Users means employed teachers or other staff and enrolled students of the Subscriber during the Term.
Australian Consumer Law means Schedule 2 of the Competition and Consumer Act 2010 (Cth).
Commencement Date means the date in which the Subscriber purchased the Product.
Conditions means these Terms and Conditions of Use.
Copyright Act means the Copyright Act 1968 (Cth).
Copyright Statement means the statement which the Subscriber can access via the Website.
Default Event means any:
material breach of these Conditions;
misuse of the Product or Product Material;
any breach of the Copyright Statement; and
breach of any warranty as described in clause 13 of these Conditions.
Expiry Date means twelve (12) months from the date is which Subscriber purchases the Product.
FAQs means the Frequently Asked Questions contained on the Website.
GST means the Goods and Services Tax as created by the GST Act.
GST Act means A New Tax System (Goods and Service Tax) Act 1999 (Cth).
Order Form means the order form contained on the Website which the Subscriber must complete prior to making payment of the Subscription Fee.
Intellectual Property means all Product Material and literary, artistic works and other copyright works, processes, designs, user content, whether or not registrable in the Commonwealth of Australia or throughout the world which the Subscriber is granted access to whilst utilising the Product or Product Material.
Product means the numeracy assessments, numeracy curriculum and/or literacy assessments provided by the Product Provider which is accessible by the Subscriber through the Website.
Product Material means all workbooks, modules, learning guides, assessments, results analysis and related materials which make up the Product.
Product Selection Box means the digital boxes which appear under the ''purchase'' section of the Website which the Subscriber selects to purchase the relevant Product.
Product Provider means Andrew John Spitty trading as Essential Assessment (ABN 46 328 039 971) and any person acting on behalf of and with the authority of Andrew John Spitty.
Subscriber means the learning institution which has purchased the Subscription for the Term and on the terms and conditions contained in these Conditions.
Subscriber's Account means the account created by the Provider to allow the Subscriber to access the Product and the Product Material, including the Subscriber's log in information and password.
Subscription means the non-exclusive licence granted by the Product Provider to the Subscriber for use of the Product and the Product Material.
Subscription Period means the period between Commencement Date and the Expiry Date.
Subscription Fee means the fee paid by the Subscriber to utilise the Product.
System Downtime means any scheduled maintenance, service requirements or system error which results in the Website, Product or Product Material being unavailable for use by the Subscriber, whether or not such downtime is in the control of the Product Provider.
Website means http://www.essentialassessment.com.au
2
Scope of Agreement
Upon acceptance of selection of the Product Selection Box, completing the Order Form and paying the Subscription Fee, the parties acknowledge that these Conditions are binding.
The Product supplied by Product Provider are on the Conditions contained herein to the exclusion of anything to the contrary.
The Subscriber's failure to object to any of the any of these Conditions stated by the Product Provider herein does not alter the following Conditions.
The Product Provider retains the right to amend, vary or alter these Conditions from time to time during the Term.
The Product Provider retains the right to amend, vary or alter the Subscription Fee from time to time. In such circumstances, the Product Provider will provide notice on the Website or will issue a notice to the Subscriber's email address.
3
Previous Dealings
Previous dealings between the Product Provider and the Subscriber shall not have any effect on these Conditions.
4
Term
The Subscriber agrees and acknowledges that the use of the Product and the Product Material is limited to the Term.
Upon the Expiry Date, the parties acknowledge that the Subscriber's Account will automatically be disabled by the Provider and these Conditions will come to an end.
5
Payment of Subscription Fee
The parties agree and acknowledge that the Subscriber will be provided with a Subscriber's Account and will be granted access to the Product upon payment of the Subscription Fee.
By clicking the Product Selection Box, the Subscriber agrees and acknowledges that the Subscriber will be bound to pay the Subscription Fee.
6
Goods and Services Tax
Unless otherwise stated, the parties agree and acknowledge that the Subscription Fee is exclusive of GST. Where the service provided is subject to GST, it will be added and charged to the Service Provider and will make up the Subscription Fee.
7
Use of Product
The Subscriber agrees and acknowledges that by paying the Subscription Fee:
the Subscriber is granted a non-exclusive licence to access and use the Product;
the Subscriber will only use the Product for the Product's intended purpose;
the Subscriber's use and entitlement to access and use the Product and Product Material will expire at the Expiry Date; and
the Subscriber is responsible for monitoring all Authorised User's use of the Product and Product Material.
The Subscriber agrees and acknowledges that use of the Product is limited to educational purposes and the Subscriber shall not use, distribute or reproduce the Product Material for any other purpose, whether it be for a commercial or financial purpose.
The Subscriber agrees and acknowledges that the Subscriber's Account is non-transferrable and may only be utilised by Authorised Users.
The Subscriber agrees to make all reasonable efforts to keep confidential all Subscriber's Account information and in the event that such information is lost or disclosed to a third party, the Subscriber agrees to immediately notify the Product Provider.
The Product Provider makes no guarantees or gives no warranty that the Website, Product or Product Material will be available at all times or for the purpose the Subscriber may intend.
The Product Provider will use its best endeavours to notify the Subscriber of any planned or foreshadowed System Downtime.
In the event of System Downtime, the Subscriber holds harmless and releases the Subscriber from any liability, loss or claim.
The Subscriber holds harmless and releases the Product Provider from any liability for loss of data, including but not limited to online results and any other Product Material, whether caused as a result of System Downtime or otherwise.
8
Cancellation of Subscriber's Account by Subscriber
While the Subscriber may suspend, cancel or terminate the Subscriber's Account, the Subscriber agrees and acknowledges that the Subscription Fee is non-refundable and use of the Product and Product Material is limited to the Subscriber and the Authorised Users.
Any cancellation, suspension or termination of the Subscriber's Account of this shall not affect any accrued rights of the Product Provider, nor shall it affect any provision of these Conditions which is expressly or by implication intended to continue in force after such cancellation, suspension or termination.
9
Cancellation of Subscriber's Account by Product Provider
The Product Provider may suspend, cancel or terminate the Subscriber's Account if a Default Event occurs.
In the event that the Product Provider enforces the Product Provider's right under clause 9.1, the Product Provider reserves the right to retain the Subscription Fee.
Any cancellation, suspension or termination of the Subscriber's Account shall not affect any accrued rights of the Product Provider, nor shall it affect any provision of these Conditions which is expressly or by implication intended to continue in force after such cancellation, suspension or termination.
10
Obligations of Subscriber at conclusion of these Conditions
In the event the Subscriber's Account is suspended, cancelled or terminated pursuant to clause 8 or clause 9 of these Conditions, the Subscriber agrees and acknowledges that it shall return to the Product Provider or destroy all Product Material as specified and directed by the Product Provider.
From the Expiry Date, the Subscriber agrees and acknowledges that it shall return to the Product Provider all Product Material or destroy all Product Material.
In the event that the Subscriber breaches the Subscriber's obligations under clause 5, clause 7, clause 6, clause 11, clause 12 and clause 13.2 and/or distributes, copies or in any other way uses the Product Material, the Subscriber will indemnify the Product Provider for any loss, claim or damage incurred by the Product Provider as a result of such breach.
The parties agree that this clause 10 shall survive the termination or expiration of the Subscription Period.
11
Intellectual Property
The parties agree and acknowledge that all Intellectual Property remains the absolute property of the Product Provider.
Use of any Intellectual Property by the Subscriber which falls outside the scope of these Conditions is expressly prohibited.
Pursuant to the Copyright Statement, the parties agree that all Product Material is protected by the Copyright Act and that all Product Material must not be copied, reproduced, republished, downloaded, posted, broadcasted or transmitted in any way which is outside the scope of these Conditions.
The Subscriber agrees and acknowledges that the Subscriber shall not use the Product Material, the Website or any related content in a manner which infringes the copyright, moral rights or any other intellectual property of any third party.
The parties agree that this clause 11 shall survive the termination or expiration of the Subscription Period.
12
Confidentiality
The Subscriber agrees and acknowledges all information, Product Material and data which the Subscriber accesses during the Term is considered confidential information (Confidential Information).
In the event the Subscriber copies, reproduces, republishes, broadcasts or transmits any Confidential Information to any third party, the Subscriber agrees to indemnify the Product Provider for any loss or damage resulting from such disclosure.
The parties agree that this clause 12 shall survive the termination or expiration of the Subscription Period.
13
Warranties
The Subscriber warrants that the Subscriber:
has the authority to enter into these Conditions;
is responsible for the Authorised Users use of the Product, Product Material and Website;
has read the FAQs prior to paying the Subscription Fee;
will monitor and regularly attend to reviewing these Conditions and the FAQs during the Term;
will comply with its obligations under clause 5, clause 7, clause 10, clause 11 and clause 12 of these Conditions.
The parties agree and acknowledge that any breach by the Subscriber of the warranties contained in clause 13.1 will considered a material breach of these Conditions.
14
Indemnities
The Subscriber indemnifies and holds harmless the Product Provider for any loss, claim or damage incurred by the Product Provider for any misuse of the Product, Product Material, Website Confidential Information and Intellectual Property.
15
Disclaimers
In the event that the supply of the Product is deemed to be supply under the Australian Consumer Law, the parties agree that nothing in these Conditions excludes, restricts or modifies the exercise of any right or remedy or the imposition of any liability under the Australian Consumer Law.
To the maximum extent permitted by law, the Product Provider expressly and irrevocably disclaims any liability whatsoever for any loss or damage in connection with the use of the Product, including but not limited, to any representations made by the Product Provider in respect of the Product or Product Material supplied to the Subscriber by virtue of the Website.
Subject to the Australian Consumer Law, the entire risk of the Subscriber's use of the Product or Product Material is to the maximum extent permitted by law, is limited and the Product Provider will have no liability whatsoever for any loss, harm, damage cost or expense or any direct, special, indirect, punitive or consequential loss or damage in respect of the Subscriber's use of the Product or Product Material.
The Product Provider makes no representation and gives no warranty or guarantee as to the suitability, accuracy, quality, performance or fitness for purpose of the Product or the Product Material and the parties agree and acknowledge that all such warranties or undertakings are excluded.
The Subscriber agrees and acknowledges that any of the information contained in the Product, Product Material or Website is not to be considered professional advice or a formal recommendation and any such representations and warranties are hereby excluded.
16
Severability
Any provision of these Conditions which is prohibited or unenforceable in any jurisdiction is ineffective as to that jurisdiction to the extent of the prohibition or unenforceability. This does not invalidate the remaining provisions of these Conditions nor does it affect the validity or enforceability of that provision in any other jurisdiction.
17
No Waiver
The Product Provider's failure to enforce any provision of these Conditions at any time or for any period of time will not be construed to be a waiver of such provisions or the Product Provider's rights to enforce each and every provision of these Conditions. A waiver of a power or right shall be ineffective unless it is in writing and signed by the Product Provider.
18
Privacy
By purchasing the Subscription, the Subscriber agrees and acknowledges that the Product Provider will collect or otherwise deal with the personal information of the Subscriber.
Subscriber agrees and acknowledges that the Product Provider may use the personal information obtained during the Term to:
verify the identity of the Subscriber;
assist the Subscriber in utilising the Product or Product Material;
administer and manager the Product or Product Material;
provide information to the Subscriber about the other services and products of the Product Provider;
investigate misconduct; and
assist the Product Provider for research purposes.
The Subscriber shall have the right to request (by e-mail) from the Product Provider:
a copy of the information about the Subscriber retained by the Product Provider and the right to request that the Product Provider correct any incorrect information; and
that the Product Provider does not disclose any personal information about the Subscriber for the purpose of direct marketing.
The Product Provider will destroy personal information upon the Subscriber’s request (by e-mail) or if it is no longer required unless it is required in order to fulfil the obligations of these Conditions or is required to be maintained and/or stored in accordance with the law.
19
Compliance with laws
Except as expressly provided to the contrary in these Conditions, all representations, warranties, terms and conditions in relation to the Products, whether implied or expressed, are hereby excluded unless otherwise not permitted to be excluded by law.
20
Jurisdiction
These Conditions will take effect and be construed in all respects in accordance with the laws of the State of Victoria, Australia. The parties irrevocably submit to the jurisdiction of the State of Victoria for all proceedings arising in connection with these Conditions.
21
Survival of Conditions
The provisions of these Conditions shall continue to apply after the expiration or termination of these Conditions.