Terms of Service

PARTIES

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.

Duration

What is the duration of this agreement?

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.

Renewal of the term of this agreement

This Agreement and the Customer's Subscription may be renewed for subsequent terms

Supplier must consent to renewal

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.

Free Trial Period

The Customer may terminate this Agreement without penalty prior the expiration of any free trial period offered to the customer.

Provision of access to My Focusbook Application

2.1 Access to the Application

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.

2.2 Support Services

Subject to this Agreement the Supplier will also provide Customer with any Support Services.

2.3 Customer's restricted use of the 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.

2.4 Necessary consents to provide the Services

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.

2.5 Supplier's internal systems and technical support

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.

2.6 Prohibited conduct in relation to the Application

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:

  1. remove or modify any Application markings or any notice of Supplier's rights;
  2. make programs or materials resulting from the Services available to any third party for use in the third party's business;
  3. commercially exploit the Services or the Application (including by making it available to any third party); and
  4. distribute or transmit any part of the Services by any means.

2.7 Unauthorised third party access

Customer shall use reasonable efforts to prevent unauthorised third parties from accessing the Services.

2.8 No sharing of access rights

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.

2.9Unacceptable use 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.

Data and access

Confidentiality of Customer Data

Supplier agrees, on the terms of clause 7 (Confidentiality) that Customer Data is Customer's Confidential Information.

3.2 Supplier to make backup copies of Customer Data

Supplier shall make regular backup copies of Customer Data.

3.3 Inspection of data by Customer and its auditors

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.

3.4 Customer's acknowledgements and warranties

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.

3.5 Customer Access Facilities

Customer shall be responsible for providing its own Customer Access Facilities.

3.6 Security standards of 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.

3.7 Ownership of IP

Subject to clause 7 (Confidentiality), Supplier owns all rights, including intellectual property rights, in anything developed or delivered under this Agreement.

3.8 Third party facilities

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.

4 Privacy

4.1 Supplier's privacy policy

In performing this Agreement, Supplier shall comply with its privacy policy in force from time to time. Supplier's privacy policy as at the date of this Agreement is at www.myfocusbook.com.au/privacy. Supplier's privacy terms are subject to change from time to time, provided that any such change will not materially reduce the level of privacy protection for Customer Data during the period for which any Charges have been paid.

4.2 Services may be provided from any location

Supplier may provide the Services from any locations, and/or through the use of contractors, worldwide.

4.3 Information and consents

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.

5 Charges

5.1 What are the Charges and Additional Charges?

Customer shall pay the Charges at the rate corresponding the selected Subscription Option as indicated by the Customer on Order Form.

5.2 Additional Charges for additional work

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.

5.3 What if Customer disputes Supplier's Charges?

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)).

5.4 Interest on overdue amounts

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).

5.5 Customer must pay GST

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:

  1. pay to Supplier an amount equal to any GST payable for any supply by Supplier in connection with this Agreement; and
  2. make such payment either on the date when the Charges or other amounts to which it relates is due within seven (7) days after Customer is issued with a tax invoice or within seven (7) days after Supplier's request, whichever is the later.

6 Compliance with law

6.1 Customer responsible for compliance

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.

6.2 Disclosure of Customer Data by Supplier

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.

6.3 Indemnity

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:

  1. Supplier's collection, use, disclosure, storage or other involvement with Customer Data and any other information (in any form) relevant to Customer's relationship with Supplier under this Agreement; and
  2. acting in accordance with clause^ 6.2

7 Confidentiality

7.1 Confidentiality obligation

A party shall not without the prior written approval of the other party disclose the other party's Confidential Information.

7.2 Permitted disclosure of Confidential Information

A party shall not be in breach of clause for any uses or disclosures of Confidential Information which:

  1. are required by law;
  2. are to related companies, advisers, contractors, auditors or insurers; or
  3. have become public knowledge other than through its wrongful act or omission.

7.3 Survival

This clause shall survive the termination of this Agreement.

8 General exclusion and operation of laws

8.1 Scope of exclusion of warranties, rights and liabilities

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.

8.2 Customer's due diligence

The Customer acknowledges and agrees that:

  1. prior to entering into this Agreement it has been given a reasonable opportunity to examine and satisfy itself regarding all goods and services which are the subject of this Agreement and that prior to entering into this Agreement it has availed itself of that opportunity;
  2. at no time prior to entering into this Agreement has it relied on the skill or judgment of the Supplier and that it would be unreasonable for the Customer to rely on any such skill or judgment; and
  3. where any acquisition of goods under this Agreement has been made by reference to a sample or demonstration model, prior to entering into this Agreement the Customer has been given a reasonable opportunity:
    1. to satisfy itself that the goods correspond with the sample or demonstration model as to quality, state and condition; and
    2. to examine the sample or demonstration model for any apparent defects, and that it has availed itself of that opportunity.

8.3 Vienna Convention excluded

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.

8.4 Liability for breach of guarantees

Pursuant to s 64A of the Australian Consumer Law (under the Competition and Consumer Act 2010 (Cth)):

  1. this clause applies in respect of any of the goods or services supplied under this Agreement which are not of a kind ordinarily acquired for personal domestic or household use or consumption, provided that this sub-clause will not apply if the Customer establishes that reliance on it would not be fair and reasonable;
  2. liability for breach of a guarantee conferred by the Australian Consumer Law (under the Competition and Consumer Act 2010 (Cth)), other than those conferred by ss 51-53 of that Law, is limited:
    1. in the case of goods, to any one of the following as determined by the Supplier:
      1. the replacement of the goods or the supply of equivalent goods; or
      2. the repair of the goods; or
      3. the payment of the cost of replacing the goods or of acquiring equivalent goods; or
      4. the payment of the cost of having the goods repaired;
    2. in the case of services, to any one of the following as determined by the Supplier:
      1. the supplying of the services again; or
      2. the payment of the cost of having the services supplied again.

    9 Liability of Supplier

    9.1 Limitation of liability

    Except in relation to:

    1. liability for personal injury or death;
    2. liability referred to in clause 8; and
    3. liability for Supplier's breach of this Agreement (which Customer agrees shall be limited, for all claims in aggregate, to paying an amount equal to the Charges paid by Customer applicable to the period in which the first claimed breach occurred),

    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).

    9.2 Reliance on representations

    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.

    9.3 Indemnity by Customer

    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.

    9.4 Apportionment of liability

    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.

    10 Termination

    10.1 Supplier's right to terminate

    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:

    1. Customer is in breach of any term of this Agreement and such breach is not remedied within seven (7) days of it notifying Supplier;
    2. Customer becomes, threatens or resolves to become or is in jeopardy of becoming subject to any form of insolvency administration;
    3. Customer, being a partnership, dissolves, threatens or resolves to dissolve or is in jeopardy of dissolving;
    4. Customer, being a natural person, dies; or
    5. Customer ceases or threatens to cease conducting its business in the normal manner.

    10.2 Supplier's additional requirements on termination

    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:

    1. repossess any of its property in the possession, custody or control of Customer;
    2. retain any moneys paid;
    3. charge a reasonable sum for work performed in respect of which work no sum has been previously charged;
    4. be regarded as discharged from any further obligations under this Agreement; and
    5. pursue any additional or alternative remedies provided by law.

    10.3 Rights to Services ends on termination

    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.

    10.4 Return of Customer Data

    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.

    10.5 No obligation to retain information

    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.

    11 Force Majeure

    11.1 Delays or failures caused by Force Majeure

    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.

    11.2 Refunds

    If this Agreement is terminated pursuant to clause, Supplier is not liable to refund any moneys paid by Customer pursuant to this Agreement.

    12 Entire agreement

    This Agreement constitutes the entire Agreement between the parties and supersedes all prior representations, agreements, statements and understandings, whether verbal or in writing.

    13 Assignment and novation

    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.

    14 Waiver and variation

    14.1 Waiver

    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.

    14.2 Variation

    The provisions of this Agreement will not be varied, except by agreement in writing signed by the parties.

    15 Disputes

    15.1 Arbitration

    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.

    15.2 Urgent relief

    Nothing in this clause shall prevent a party from seeking urgent equitable relief before an appropriate court.

    16 Severability

    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.

    17 Governing law

    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.

    18 Notices

    18.1 Method of giving notices

    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:

    1. delivered to that person's postal address;
    2. sent by pre-paid mail to that person's postal address;
    3. transmitted by facsimile to that person's facsimile number; or
    4. sent by electronic mail to that person's email address.

    18.2 Time of receipt

    A notice given to a person in accordance with this clause is treated as having been given and received:

    1. if delivered to a person's address, on the day of delivery if a Business Day, otherwise on the next Business Day;
    2. if sent by pre-paid mail, on the third Business Day after posting; or
    3. if transmitted by facsimile to a person's facsimile number and a correct and complete transmission report is received, on the day of transmission if a Business Day, otherwise on the next Business Day; or
    4. if sent by electronic mail and the sender does not receive a message from its internet service provider or the recipient's mail server indicating that it has not been successfully transmitted, on the day of sending if a Business Day, otherwise on the next Business Day.

    18.3 Address of parties

    For the purposes of this clause 18, the address of the Customer is the address set out by the Customer on the Order Form

    19 Definitions and interpretation

    19.1 Definitions

    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:

    1. information relating to the Application;
    2. information relating to the personnel, policies, business, systems and data of Supplier; and
    3. information relating to the terms on which the Services are to be provided to Customer pursuant to this Agreement.

    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:

    1. any faults, defects, incorrect operation of or other circumstance affecting or relating to Customer Access Facilities; and
    2. acts of God, lightning strikes, earthquakes, Hoods, storms, explosions, fires and any natural .disaster, acts of war, acts of public enemies, terrorism, riots, civil commotion, malicious damage, sabotage and revolution and strikes.

    GST means:

    1. the same as in the GST Law.
    2. any other goods and services tax, or any tax applying to this transaction in a similar way; and
    3. any additional tax, penalty tax, fine, interest or other charge under a law of such a tax.

    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.

    19.2 Interpretation

    In this agreement, unless the context otherwise requires:

    1. the singular includes the plural and vice versa;
    2. a recital, schedule, annexure or a description of the parties forms part of this agreement;
    3. where an expression is defined anywhere in this agreement, it has the same meaning throughout; and
    4. where an expression is defined, another part of speech or grammatical form of that expression has a corresponding meaning;
    5. the meaning of general words is not limited by specific examples introduced by including for example or similar expressions;
    6. a rule of construction does not apply to the disadvantage of a party because the party was responsible for the preparation of this agreement or any part of it;
    7. if a day on or by which an obligation must be performed or an event must occur is not a Business Day, the obligation must be performed or the event must occur on or by the next Business Day; and
    8. a word or expression defined in the Corporations Act has the meaning given to it in the Corporations Act;
    9. words and expressions defined in the GST Law have the same meaning in clauses concerning GST;
    10. headings are for convenience of reference only and do not affect interpretation
    11. a reference to:
      1. a statute, ordinance, code or other law includes regulations and other instruments under it and consolidations, amendments, re‑enactments or replacements of any of them;
      2. an individual or person includes a corporation, partnership, joint venture, association, authority, trust, state or government and vice versa;
      3. any gender includes all genders;
      4. a recital, clause, schedule, annexure or exhibit is to a recital, clause, schedule, annexure, or exhibit of or to this agreement;
      5. any agreement or document is to that agreement or document (and, where applicable, any of its provisions) as amended, novated, supplemented or replaced from time to time;
      6. any party to this agreement, or any other document or arrangement, includes that party's executors, administrators, substitutes, successors and permitted assigns;
      7. a person includes a natural person, partnership, body corporate, association, governmental or local authority or agency or other entity;
      8. a "subsidiary" of a body corporate is to a subsidiary of that body corporate in accordance with Pt 1.2 Div 6 of the Corporations Act;
      9. a "holding company" of a body corporate is to another body corporate of which that body corporate is a subsidiary within the meaning of Pt 1.2 Div 6 of the Corporations Act;
      10. a "related body corporate" of a body corporate is to another body corporate which is related to that body corporate within the meaning of s 50 of the Corporations Act;
      11. a bankruptcy or winding up includes bankruptcy, winding up, liquidation, dissolution, becoming an insolvent under administration (as defined in s 9 of the Corporations Law), being subject to administration and the occurrence of anything analogous or having a substantially similar effect to any of those conditions or matters under the law of any applicable jurisdiction, and to the procedures, circumstances and events which constitute any of those conditions or matters;
      12. A$, $A, dollar or $ is to Australian currency;
      13. time is to time;

      14. a document in agreed form is to a document the form of which has been agreed by the parties before the date of this agreement.
      15. a matter being to the knowledge of a person means that the matter is to the best of the knowledge and belief of that person after making enquiries reasonable in the circumstances.