This Application Service Agreement is made between you and Nitza Pty Ltd (ACN 159 480 065) of Essendon in the State of Victoria and Maaz Pty Ltd (ACN 159 499 493) of Glenroy in said State trading as My Focusbook (herein referred to as “My Focusbook. By clicking on the "I accept the terms and conditions of this Agreement" button You (herein referred to as “the Customer”) are indicating your acceptance of this Agreement and agree to be legally bound by it.
The Customer agrees to be bound by the terms of this agreement for the duration of the Customer's subscription to access the Application (as indicated by the Customer within the Order Form) or until such time that the subscription has been terminated pursuant to the terms of this Agreement.
This Agreement and the Customer's Subscription may be renewed for subsequent terms
Renewal of this Agreement pursuant to clause is subject to the consent of Supplier. Customer agrees that Supplier may require an adjustment of the Charges as a condition of providing its consent to renewal.
The Customer may terminate this Agreement without penalty prior the expiration of any free trial period offered to the customer.
Subject to this Agreement, Supplier will provide Customer with access to the Application in the manner specified by issuing a unique login to the Customer. The number of logins will be determined by the Customer's subscription option as indicated by the Customer upon the Order Form. Provided that the Customer has not breached any term of this Agreement, the Customer's access will continue for the period of the Customer's subscription to the Service, which may, subject always to section 11 be renewed at any time.
Subject to this Agreement the Supplier will also provide Customer with any Support Services.
Customer agrees that it may only access and make use of the Application pursuant to the terms of this Agreement. The Customer warrants that its use of the Services will be restricted to the sole purpose of meeting the needs of an educational institution.
Other than for Supplier's obligation to give Customer access to the Application as part of the Services, if any consents (which may include, without limitation, consents for Supplier to access use, store and disclose Customer Data) are required for Supplier to provide the Services, Customer must procure those consents for Supplier. Supplier's obligations to provide the Services are conditional on those consents having been procured. Customer shall comply with Supplier's reasonable requests for confirmation of this.
Supplier may configure its system and determine the nature and manner of its internal technical support in its discretion. Customer agrees to comply with such access and use procedures (including as to communications and security) as Supplier notifies Customer from time to time.
Other than an expressly permitted by this Agreement, Customer shall not do or permit anything to be done in respect of the Application or the Services. Without limiting the preceding sentence, Customer shall not:
Customer shall use reasonable efforts to prevent unauthorised third parties from accessing the Services.
Customer agrees that the access rights are limited to the number of Teachers permitted by the Customer's subscription option.
The Customer further agrees that access rights of any individual user permitted to use the Services (for example on a named or password-enabled basis) cannot be shared or used by more than one individual, unless the right is reassigned in its entirety to another individual authorised user in which case the first user shall no longer have any right to access all or any part of the Services.
Customer agrees not to make or permit any use of the Services in a way which is unacceptable. Use is unacceptable if:
Customer agrees that Supplier may immediately suspend all or any part of the Services, and remove or disable access to anything that contravenes those restrictions or is otherwise in breach of this Agreement.
Supplier agrees, on the terms of clause 7 (Confidentiality) that Customer Data is Customer's Confidential Information.
Supplier shall make regular backup copies of Customer Data.
Supplier shall on reasonable notice make Customer Data and related data, documentation or records maintained on behalf of Customer available for inspection by Customer or Customer's auditors.
Customer agrees that it has sole responsibility for the accuracy, quality, integrity, legal compliance, reliability, appropriateness and rights ownership in all Customer Data. Customer also agrees that there are limitations to the Application's and Services' ability to assist in Customer's business. Customer agrees that the Application and the Services do not detect faulty or aberrant input data, do not take into account all of the matters that should be considered in decision making regarding matters of relevance to Customer's business and should not be used as a substitute for Customer's independent and appropriately qualified decisions regarding matters of relevance to Customer's business. Customer warrants that it will not make or permit any access to or use of the Application or Services unless it has in place appropriate strategies, in addition to (and not reliant on) its use of the Application and Services to manage all risks attendance on its business.
Customer shall be responsible for providing its own Customer Access Facilities.
Customer warrants and shall ensure that all Customer Access Facilities meet the security standards required by Supplier from time to time and are and will remain free from any circumstances (including viruses) which' may adversely affect Supplier, the Application or the Services and are otherwise reasonably appropriate for use in conjunction with the Services.
Subject to clause 7 (Confidentiality), Supplier owns all rights, including intellectual property rights, in anything developed or delivered under this Agreement.
Third party facilities, including software programs, online service providers, data storage service provides may be necessary or appropriate for access to or use with the Application. Customer agrees that its right to make any use of such facilities is governed by the terms of the relevant third party licence/services agreement and not by this Agreement.
Supplier may provide the Services from any locations, and/or through the use of contractors, worldwide.
Without limiting clauses 2.4 and 6.1 Customer agrees to provide any information, and to obtain any consents, relevant to its use of the Services and Application, including those in relation to the collection, use, disclosure and storage of personal information of any individual whose personal information may be included in Customer Data.
Customer shall pay the Charges at the rate corresponding the selected Subscription Option as indicated by the Customer on Order Form.
Customer shall pay Supplier any such additional charges as the Supplier invoices from time to time for the supply of goods or services not expressly required by this Agreement or (without limiting Supplier's remedies at law) which were either required by Customer or incurred by Supplier as a result of carrying out any works which were reasonably appropriate in connection with Customer's non-performance of this Agreement. For the purpose of clarify, such additional charges may included but are not limited to training provided to the Customer at the Customer's request.
If Customer disputes the whole or any portion of an invoice submitted by Supplier, Customer shall pay the portion of the amount stated in the invoice which is not in dispute and shall notify Supplier in writing (within seven (7) days of receipt of invoice) of the reasons for disputing the remainder of the invoice. If it is resolved that some or all of the amount in dispute ought properly to have been paid at the time it was first invoiced, then Customer shall pay the amount finally resolved together with interest on that amount in accordance with the terms of payment set out in this Agreement (the rate of interest applicable will be the rate specified from time to time by the Penalty Interest Rate Act 1983 (Vic)).
Customer shall pay Supplier interest on any amount due and not paid by Customer within the time required by this Agreement at the rate specified from time to time by the Penalty Interest Rate Act 1983 (Vic).
In addition to paying the Charges and any other amount payable under or in connection with this Agreement (which are exclusive of GST), Customer will:
Supplier is not liable to Customer under this Agreement or otherwise if and to the extent Customers access to or use of any Services is contrary to any obligations, including those owed under contract or any laws.
Supplier may (but is not bound to) make Customer Data and any other information (in any form) relevant to Customer's relationship with Supplier under this Agreement available to any person who provides reasonable evidence to Supplier of their right to this, including a law enforcement officer, a person representing any professional or industry standards organisation and representatives of any person to whom Customer Data pertains.
Customer shall indemnify Supplier against all loss (including costs, expenses, damages and liability, whether actual or prospective) incurred or likely to be incurred as a result of:
A party shall not without the prior written approval of the other party disclose the other party's Confidential Information.
A party shall not be in breach of clause for any uses or disclosures of Confidential Information which:
This clause shall survive the termination of this Agreement.
Nothing in this Agreement excludes, restricts or modifies any condition, warranty, right or liability implied in this Agreement or protected by law to the extent that such exclusion, restriction or modification would render this Agreement or any provision of this Agreement void, illegal or unenforceable. Subject to that, any condition, warranty, right or liability which would otherwise be implied in this Agreement or protected by law is excluded.
The Customer acknowledges and agrees that:
The application of the United Nations Convention on Contracts for the International Sale of Goods (the Vienna Convention) to this Agreement (by virtue of any law relevant to this Agreement) is excluded.
Pursuant to s 64A of the Australian Consumer Law (under the Competition and Consumer Act 2010 (Cth)):
Except in relation to:
Supplier shall be under no liability to Customer in respect of any loss or damage (including loss of profits, loss of goodwill, loss of data and any special, indirect or consequential loss or damage) which may be suffered or incurred or which may arise directly or indirectly in any way in connection with this Agreement (including in respect of goods or services supplied pursuant to this Agreement).
Without limiting the following sentence, Customer warrants that it has not relied on any representation made by Supplier which has not been stated expressly in this Agreement, or upon any descriptions, illustrations or specifications in any way relating to the Services including catalogues, website or publicity material produced by Supplier. Customer acknowledges that to die extent Supplier has made any representation which is not otherwise expressly stated in this Agreement, Customer has been provided with an opportunity to independently verify the accuracy of that representation.
Customer shall at all times indemnify and hold harmless Supplier and its officers, employees, contractors and agents (those indemnified) from and against any loss (including legal costs and expenses and liability) incurred or suffered by any of those indemnified arising from any claims against those indemnified where such loss or liability was caused by a breach by Customer of its obligations under this Agreement or any wilful, unlawful or negligent act or omission of Customer.
In respect of any claim between the parties under or in connection with this Agreement, the parties agree that to the maximum extent permitted by law, this Agreement excludes the operation of any laws which would apportion any liability to Supplier which would not have been so apportioned but for such laws.
Without limiting the generality of any other clause in this Agreement, Supplier may terminate this Agreement or suspend performance of its obligations under this Agreement (for such period as Supplier specified) immediately by notice in writing if:
If any of the circumstances referred to in subclauses 10.1(a)(e) occur, Customer shall, if requested by Supplier, comply with Supplier's requirement for Supplier (in addition to terminating this Agreement) to:
Customer agrees that on expiry or termination of this Agreement for any reason, all of its rights in respect of the Services (including its right to access the Application) shall end.
If Customer requests, and subject to Customer having discharged all of its obligations under this Agreement, Supplier shall, within one (1) month after termination or expiry of this Agreement, provide Customer with a file containing Customer Data.
Customer agrees and acknowledges that Supplier has no obligation to retain any information relating to Customer (including Customer Data) and that all such information may be irretrievably deleted by Supplier after one (1) month from the date of any suspension, termination or expiry of this Agreement.
Supplier shall not be liable for any delay or failure to perform its obligations under this Agreement if such delay is due to Force Majeure. If a delay or failure is caused or anticipated due to Force Majeure, Supplier's obligations will be suspended. If a delay or failure by Supplier to perform its obligations due to Force Majeure exceeds sixty (60) days, Supplier may immediately terminate the Agreement on providing notice in writing to Customer.
If this Agreement is terminated pursuant to clause, Supplier is not liable to refund any moneys paid by Customer pursuant to this Agreement.
This Agreement constitutes the entire Agreement between the parties and supersedes all prior representations, agreements, statements and understandings, whether verbal or in writing.
The benefit of this Agreement shall not be assigned by Customer without Supplier's written consent. A change in control of or affecting Customer shall be deemed to be an assignment, with 'control' referring to the power to materially influence Customers decision making or policies.
No right under this Agreement shall be deemed to be waived except by notice in writing signed by each party. A waiver by Supplier will not prejudice its rights in respect of any subsequent breach of the Agreement by Customer. Any failure by Supplier to enforce any clause of this Agreement, or any forbearance, delay or indulgence granted by Supplier to Customer, will not be construed as a waiver of Suppliers rights .under this Agreement.
The provisions of this Agreement will not be varied, except by agreement in writing signed by the parties.
Any dispute arising in connection with this Agreement which cannot be settled by negotiation between the parties or their representatives shall be submitted to arbitration in accordance with the Rules for the Conduct of Commercial Arbitrations for the time being of the Institute of Arbitrators & Mediators Australia. During such arbitration, both Parties may be legally represented.
Nothing in this clause shall prevent a party from seeking urgent equitable relief before an appropriate court.
If any provision of this Agreement is held invalid, unenforceable or illegal for any reason, the Agreement shall remain otherwise in full force apart from such provisions which shall be deemed read down to the extent reasonably appropriate to remove the invalidity, unenforceability or illegality.
This Agreement will be governed by and construed according to the law of the Victoria and the Parties agree to submit to the jurisdiction of the Courts of Victoria.
A notice, consent, approval or other communication (each a notice) under this Agreement must be in writing, signed by or on behalf of the person giving it, addressed to the person to whom it is to be given and:
A notice given to a person in accordance with this clause is treated as having been given and received:
For the purposes of this clause 18, the address of the Customer is the address set out by the Customer on the Order Form
In this agreement, unless the context otherwise requires:
Additional Charge means a charge in accordance with the Supplier's standard rates in effect from time to time.
Agreement means this document and the Order Form and any schedules to it.
Application means the means the My Focusbook software owned by the Supplier and accessed by you via the web address at https://www.myfocusbook.com or https://myfocusbook.com.au pursuant to this Agreement.
Charges means the subscription charges for the Services as specified in Order Form.
Confidential Information means in the case of Customer, Customer Data and in the case of Supplier includes:
Customer Access Facilities means telecommunications, networks, systems and any other facilities used or required by or on behalf of the Customer for accessing and making use of any Services other than the facilities actually provided by Supplier from time to time under this Agreement.
Customer Data means data to which Supplier is provided access by Customer for the purpose of the Services.
Force Majeure means a circumstance beyond the reasonable control of Supplier which results in Supplier being unable to observe or perform on time an obligation under this Agreement. Such circumstances shall include but shall not be limited to:
GST Law means the same as "GST Law" in A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Support Services means any technical support services provided to the Customer where the Customer experiences errors in relation to the Services but excludes training implementation, and development services.
Order Form means the online order form appearing a https://www.myfocusbook.com.au and completed by the Customer and the particulars of which are deemed to form a Schedule to this Agreement.
Services means the services which Supplier agrees to provide under this Agreement, namely access to the Application; any Management Services and any other services specified in this Agreement.
In this agreement, unless the context otherwise requires: