2. Subscription fees and payment
(a) (Subscription Fee) Unless you are signed up to a free Subscription Tier, you must pay fees to us in the amounts and at the times specified in the pricing section of the Website for your Subscription Tier, or as otherwise agreed in writing (Subscription Fees).
(b) Subscription Fees are non-refundable for change of mind.
(c) Unless otherwise agreed in writing, the Subscription Fees are due and payable on a monthly basis in arrears for the duration of the Subscription Period, with the first payment being due after the first month of your Subscription.
(d) (Automatic Recurring Billing) Your Subscription will continue to renew on a monthly basis indefinitely, and you must pay Subscription Fees in respect of each monthly period, unless you notify us within 14 days of the expiry of the then current month that you want to cancel your Subscription. Otherwise, we will continue to debit the Subscription Fees from your account each month. We will not pay any charge back amount if you fail to cancel your Subscription in accordance with this clause. By choosing a recurring payment plan, you acknowledge that your Subscription has an initial and recurring payment feature and you accept responsibility for all recurring charges prior to your cancellation of your Subscription. We may submit periodic charges for the Subscription Fees without further authorisation from you until you provide prior written notice (a receipt of which is confirmed by us) that you have terminated this authorisation or wish to change your payment method. Such notice will not affect charges submitted before we could reasonably act on such notice. To terminate your authorisation or change your payment method, please contact us via our Website.
(e) Unless otherwise indicated, the Fees do not include GST. In relation to any GST payable for a taxable supply by us, you must pay the GST subject to us providing a tax invoice.
(f) We reserve the right to charge credit card surcharges in the event payments are made using a credit, debit, or charge card (including Visa, MasterCard, or American Express).
(g) We reserve the right, from time to time, to change the Subscription Fees. We will notify you in advance if we do this.
3. Your obligations
(a) You must, and must ensure that all Users, comply with these Terms at all times. You acknowledge and agree that we will have no liability in respect of any damage, loss, or expense which arises in connection with your, your Personnel’s, or any User’s, breach of these Terms, and you indemnify us in respect of any such damage, loss or expense.
(b) You must not, and must not encourage or permit any User, Personnel, or any third party to, without our prior written approval:
- upload sensitive information or commercial secrets using the Software;
- upload any inappropriate, offensive, illicit, illegal, pornographic, sexist, homophobic, or racist material using the Software;
- upload any material that is owned or copyrighted by a third party;
- make copies of the Documentation or the Software;
- adapt, modify, or tamper in any way with the Software;
- remove or alter any copyright, trade mark, or other notice on or forming part of the Software or Documentation;
- create derivative works from or translate the Software or Documentation;
- publish or otherwise communicate the Software or Documentation to the public, including by making it available online or sharing it with third parties;
- sell, loan, transfer, sub-licence, hire or otherwise dispose of the Software or Documentation to any third party;
- decompile or reverse engineer the Software or any part of it, or otherwise attempt to derive its source code;
- attempt to circumvent any technological protection mechanism or other security feature of the Software; or
- permit any use of the Solution in addition to the Number of Solution Uses.
(c) If you become aware of misuse of your Subscription by any person, any errors in the material on your Subscription, or any difficulty in accessing or using your Subscription, please contact us immediately using the contact details or form provided on our Website.
(d) When providing any information to us about a student under the age of 18 (Minor), you warrant that you have consent from that Minor’s parent or guardian to provide that information to us and that the information provided will not breach any applicable privacy laws. Please see our Privacy Policy for more information about how we handle information.
4. User obligations
You agree, and you must ensure that all Users agree:
- to comply with each of your obligations in these Terms;
- not to intimidate, harass, impersonate, stalk, threaten, bully, or endanger any other User or distribute unsolicited commercial content, junk mail, spam, bulk content, or harassment in connection with the Solution;
- to not share your Solution account information with any other person and any use of your account by any other person is strictly prohibited. You must immediately notify us of any unauthorised use of your account, password, or email, or any other breach or potential breach of the Solution’s security;
- to not use the Solution for any purpose other than for the purpose for which it was designed, including you must not use the Solution in a manner that is illegal or fraudulent or facilitates illegal or fraudulent activity (including requesting or accepting a job which includes illegal activities or purposes);
- not to act in any way that may harm our reputation or that of associated or interested parties or do anything at all contrary to the interests of us or the Solution;
- you must not make any automated use of the Solution and you must not copy, reproduce, translate, adapt, vary, or modify the Solution without our express written consent;
- that we may change any features of the Solution at any time on notice to you;
- that information given to you through the Software, by us or another User, is general in nature and we take no responsibility for anything caused by any actions you take in reliance on that information; and
- that we may cancel your account at any time if we consider, in our absolute discretion, that you are in breach or are likely to breach this clause 4.
5. Posted materials
5.1 WARRANTIES
By providing or posting any information, materials, or other content in connection with the Software (Posted Material), you represent and warrant that, and must ensure that all Users make equivalent representations and warranties:
(a) you are authorised to provide the Posted Material (including by being authorised to provide any services that you represent you provide);
(b) the Posted Material is accurate and true at the time it is provided;
(c) any Posted Material which is in the form of a review or feedback is honest, accurate and presents a fair view of the relevant person and/or your experience;
(d) the Posted Material is free from any harmful, discriminatory, defamatory or maliciously false implications and does not contain any offensive or explicit material;
(e) the Posted Material is not "passing off" of any product or service and does not constitute unfair competition;
(f) the Posted Material does not infringe any Intellectual Property Rights, including copyright, trademarks, business names, patents, confidential information or any other similar proprietary rights, whether registered or unregistered, anywhere in the world;
(g) the Posted Material does not contain any viruses or other harmful code, or otherwise compromise the security or integrity of the Solution or any network or system; and
(h) the Posted Material does not breach or infringe any applicable laws.
5.2 LICENCE
(a) You grant to us, and must ensure that all Users grant to us, a perpetual, irrevocable, transferable, worldwide and royalty-free licence (including the right to sublicense) to use, copy, modify, reproduce and adapt any Intellectual Property Rights in any Posted Material in order for us to use, exploit or otherwise enjoy the benefit of such Posted Material.
(b) If it is determined that you retain moral rights (including rights of attribution or integrity) in any Posted Material, you forever release us from any and all claims that you could assert against us by virtue of any such moral rights, and you must ensure that all Users grant an equivalent release.
(c) You indemnify us against all damages, losses, costs, and expenses incurred by us arising in connection with any third-party claim that Posted Material infringes any third party's Intellectual Property Rights.
5.3 REMOVAL
(a) The Software acts as a passive conduit for the online distribution of Posted Material and has no obligation to screen Posted Material. However, we may, in our absolute discretion, review and remove any Posted Material at any time without giving any explanation or justification for removing the Posted Material.
(b) You agree that you are responsible for keeping and maintaining records of Posted Material.
6. Intellectual property and data
6.1 SOFTWARE CONTENT INTELLECTUAL PROPERTY
(a) (Our ownership) We retain ownership of all materials provided to you throughout the course of your Subscription (including text, graphics, logos, design, icons, images, sound and video recordings, pricing, downloads, and software) (Software Content) and reserve all rights in any Intellectual Property Rights owned or licensed by us not expressly granted to you.
(b) (Licence to you) You are granted a licence to the Software Content, for the uses set out in your Subscription Tier, and you may make a temporary electronic copy of all or part of any materials provided to you for the sole purpose of viewing them and using them for the purposes of the Software. You must not otherwise reproduce, transmit, adapt, distribute, sell, modify, or publish those materials or any Software Content without prior written consent from us or as otherwise permitted by law.
6.2 CLIENT DATA
Our Rights and Obligations
(a) You grant to us (and our Personnel) a non-exclusive, royalty-free, non-transferable, worldwide, and irrevocable licence to use Client Data to the extent reasonably required to provide the Solution.
(b) We will:
- establish, maintain, enforce, and continuously improve safety and security procedures and safeguards against the unauthorised use, destruction, loss, or alteration of Client Data;
- not make any undocumented, unreported, or authorised configuration changes to our systems or to the information security controls that secure Client Data, if those changes would materially decrease the protections afforded to Client Data; and
- notify and keep you notified at all times of our current safety and security procedures and safeguards that are made from time to time.
(c) We reserve the right to remove any Client Data, including where we deem Client Data to be inappropriate, offensive, illicit, illegal, pornographic, sexist, homophobic, or racist.
Your Obligations and Grant of Licence to Mana
(d) You are responsible for ensuring that:
- you share Client Data only with intended recipients; and
- all Client Data is appropriate and not offensive.
(e) You:
- warrant that our use of Client Data will not infringe any third-party Intellectual Property Rights; and
- indemnify us from and against all losses, claims, expenses, damages, and liabilities (including any taxes, fees, or costs) which arise out of such infringement.
7. Confidentiality and privacy
(a) Except as contemplated by these Terms, a party must not and must not permit any of its officers, employees, agents, contractors, or related companies to use or to disclose to any person any Confidential Information disclosed to it by the other party without the disclosing party’s prior written consent.
(b) You agree to our Privacy Policy, located on our Website, which is incorporated into these Terms by reference. Please read the Privacy Policy carefully as it governs our collection, use, and disclosure of personal information.
(c) Each party must promptly notify the other party if it learns of any potential, actual, or suspected loss, misappropriation, or unauthorised access to, or disclosure or use of Confidential Information or another compromise of the security, confidentiality, or integrity of Confidential Information (Security Breaches).
(d) The notifying party will investigate each potential, actual, or suspected Security Breach and assist the other party in connection with any related investigation.
8. Liability
8.1 WARRANTIES AND LIMITATIONS
(a) (Warranties) We warrant that:
- during the Subscription Period, the Software will perform substantially in accordance with the Documentation;
- during the Subscription Period, the Solution will be provided as described to you in, and subject to, these Terms; and
- to our knowledge, the use of the Software in accordance with these Terms will not infringe the Intellectual Property Rights of any third party.
(b) (Errors) We will correct any errors, bugs, or defects in the Software which arise during the Subscription Period and which are notified to us by you unless the errors, bugs, or defects:
- result from the interaction of the Software with any other solution or any computer hardware, software, or services not approved in writing by us;
- result from any misuse of the Software; or
- result from the use of the Software by you other than in accordance with these Terms or the Documentation.
(c) (Service Limitations) The Solution is made available to you strictly on an 'as is' basis. Without limitation, you acknowledge and agree that we cannot guarantee that:
- the solution will be free from errors or defects;
- the olution will be accessible at all times;
- messages sent through the Solution will be delivered promptly, or delivered at all;
- information you receive or supply through the Solution will be secure or confidential; or
- any information provided through the Solution is accurate or true.
(d) (Exclusion) To the maximum extent permitted by applicable law, all express or implied representations and warranties (whether relating to fitness for purpose or performance or otherwise) not expressly stated in these Terms are excluded.
(e) (Consumer law) Nothing in these Terms is intended to limit the operation of the Australian Consumer Law contained in the Competition and Consumer Act 2010 (Cth) (ACL). Under the ACL, you may be entitled to certain remedies (like a refund, replacement, or repair) if there is a failure with the goods or services we provide.
(f) (Compliance with laws) We do not warrant or represent that the Solution will comply with any specific local, national, or international laws or regulations. This includes, but is not limited to, Education and Care Services National Law and the Education and Care Services National Regulations in any Australian state, or any other relevant laws or regulations in any other jurisdiction.
8.2 LIMITATION OF LIABILITY
To the maximum extent permitted by law, our liability for all claims in aggregate (whether those claims be for breach of contract, negligence or otherwise, and whether those claims be only for economic loss, or for personal injury or other damage) arising under or in connection with these Terms, the Solution or a Subscription:
(a) is excluded, to the extent it concerns liability for indirect, special, and consequential damages, and damages (whether direct or indirect) reflecting loss of revenue, loss of profits, and loss of goodwill (except to the extent this liability cannot be excluded under the Competition and Consumer Act 2010 (Cth)); and
(b) is limited, insofar as concerns other liability, to the total money paid to us under these Terms as at the date the event giving rise to the relevant liability occurs (or, where there are multiple events, the date of the first such event).
8.3 INDEMNITY
You indemnify us from and against all losses, claims, expenses, damages, and liabilities (including any taxes, fees, or costs) that arise in connection with:
(a) any breach of these Terms by you, your Personnel, or a User; or
(b) any act or omission of you, a User, or your Personnel.
9. Plans, upgrades, downgrades and cancellation of your subscription.
9.1 UPGRADE AND DOWNGRADES
(a) You may notify us that you would like to upgrade or downgrade your Subscription Tier at any time. If you do, we will:
- take reasonable steps to promptly provide you with access to the new Subscription Tier; and
- upon providing such access, apply the new, relevant Subscription Fees, in the monthly billing cycle immediately following the month in which your access to the new Subscription Tier was provided, and you will be charged at the new Subscription Fee in that subsequent month (subject to clause 9.1(b)
(b) If you choose to upgrade or downgrade your Subscription, the new Subscription Fees will kick in on the date we receive written notice from you and you will be charged a pro-rata amount for the relevant billing cycle unless we notify you otherwise.
(c) These Terms will be taken to be amended in accordance with any changes agreed in accordance with clause 9.1(a).
(d) If you choose to downgrade your Subscription, you acknowledge and agree that we are not liable for, and you release us for all claims arising in connection with, any loss of content, features, or capacity, including any Client Data in relation to a downgrade in your Subscription.
9.2 CANCELLATIONS
(a) You may cancel your Subscription by notice to us. Your Subscription will end in the then-current billing cycle, and you will be charged a pro-rated amount for that billing cycle, based on the proportion of that month that fell before the date we received your cancellation notice.
(b) Your licence to the Solution under these Terms (in a read-only format) will last for the remainder of the then current billing cycle to ensure you have an opportunity to retrieve all data you may need from the Software. Once the current billing cycle ends, we will have no responsibility to store or otherwise retain any data, and you release us in respect of any loss or damage which may arise out of us not retaining any data beyond that point.
(c) Your access to the Solution will be revoked immediately after we receive a cancellation notice from you.
(d) We reserve the right to provide you with access to a ‘read only’ version of the Software after your cancellation, however, we will not be required to.
9.3 PLAN TYPES
We offer two types of subscription plans: a Team Plan and a Personal Account. You acknowledge and agree that choosing the correct plan is your responsibility, and we will not be liable for any costs or consequences that arise due to you selecting an inappropriate plan for your needs.
Team Plan: The Team Plan is designed for multiple educators. The Team Plan operates on a metered usage basis. Metered usage billing includes inherent risks. These risks include unexpected charges arising from usage that exceeds the team's budgeted or anticipated level of use.
The cost associated with metered usage can also fluctuate significantly and without warning due to changes in the team's use of the Solution.
You should closely monitor your team’s usage of the Solution to avoid unexpected costs. You acknowledge that it is your responsibility to manage and monitor the usage of the Solution by the team and avoid unexpected charges. We will not be liable to refund any excess charges, penalties, or other consequences that may arise due to you exceeding your anticipated usage of the Team Plan.
Personal Account: The Personal Account is designed for a single educator. This account has a pricing structure and usage limits which are separate from the Team Plan.
10. Disputes and termination
10.1 DISPUTE RESOLUTION
(a) The parties must, without delay and in good faith, attempt to resolve any dispute which arises out of or in connection with this agreement prior to commencing any proceedings.
(b) If a party requires resolution of a dispute it must immediately submit full details of the dispute to the chief executive officer of the other party or, if the party is an individual, that individual.
(c) The parties acknowledge that compliance with this clause is a condition precedent to any entitlement to claim relief or remedy, whether by way of proceedings in a court of law or otherwise in respect of such disputes, except:
- in the case of applications for urgent interlocutory relief; or
- a breach by another party of this clause.
10.2 TERMINATION BY US
(a) We may terminate these Terms or any Subscription in whole or in part immediately by written notice to you if:
- you are in breach of any term of these Terms or any part of a Subscription; or
- you become subject to any form of insolvency or bankruptcy administration.
(b) Upon termination of these Terms by us, the Subscription Fees already paid will be non-refundable for change of mind, and you must promptly pay any other amounts owed to us by you.
10.3 TERMINATION BY CLIENT
You may terminate these Terms if:
(a) we have committed a material breach of these Terms or a Subscription and have failed to remedy the breach within 30 days written notice by you; or
(b) we become subject to any form of insolvency or bankruptcy administration.
If you validly terminate in accordance with this clause, no further fees will be payable by you (unless later found that such termination was invalid).
11. Notices
A notice or other communication to a party under this agreement must be:
(a) in writing and in English; and
(b) delivered via email to the other party, to the email address specified in this agreement, or if no email address is specified in this agreement, then the email address most regularly used by the parties to correspond for the purposes of the subject matter of this agreement as at the date of this agreement (Email Address). The parties may update their Email Address by notice to the other party.
(c) Unless the party sending the notice knows or reasonably ought to suspect that an email was not delivered to the other party's Email Address, notice will be taken to be given:
- 24 hours after the email was sent; or
- when replied to by the other party,
whichever is earlier.
12. Force majeure
(a) We will not be liable for any delay or failure to perform its obligations under this agreement if such delay or failure arises out of a Force Majeure Event.
(b) If a Force Majeure Event occurs, we must use reasonable endeavours to notify the Customer of:
- reasonable details of the Force Majeure Event; and
- so far as is known, the probable extent to which We will be unable to perform or be delayed in performing its obligations under this agreement.
(c) Subject to compliance with clause 12(b), our relevant obligation will be suspended during the Force Majeure Event to the extent that it is affected by the Force Majeure Event.
(d) For the purposes of this agreement, a ‘Force Majeure Event’ means any:
- act of God, lightning strike, meteor strike, earthquake, storm, flood, landslide, explosion or fire;
- strikes or other industrial action outside of the control of us; or
- war, terrorism, sabotage, blockade, revolution, riot, insurrection, civil commotion, epidemic, pandemic; or
- any decision of a government authority in relation to COVID-19, or any threat of COVID-19 beyond the reasonable control of us, to the extent it affects our ability to perform our obligations.
13. General
13.1 GOVERNING LAW AND JURISDICTION
This agreement is governed by the law applying in New South Wales, Australia. Each party irrevocably submits to the exclusive jurisdiction of the courts of New South Wales, Australia, and courts of appeal from them in respect of any proceedings arising out of or in connection with this agreement. Each party irrevocably waives any objection to the venue of any legal process on the basis that the process has been brought in an inconvenient forum.
13.2 WAIVER
No party to this agreement may rely on the words or conduct of any other party as a waiver of any right unless the waiver is in writing and signed by the party granting the waiver.
13.3 SEVERANCE
Any term of this agreement which is wholly or partially void or unenforceable is severed to the extent that it is void or unenforceable. The validity and enforceability of the remainder of this agreement is not limited or otherwise affected.
13.4 JOINT AND SEVERAL LIABILITY
An obligation or a liability assumed by, or a right conferred on, two or more persons binds or benefits them jointly and severally.
13.5 ASSIGNMENT
A party cannot assign, novate, or otherwise transfer any of its rights or obligations under this agreement without the prior written consent of the other party.
13.6 ENTIRE AGREEMENT
This agreement embodies the entire agreement between the parties and supersedes any prior negotiation, conduct, arrangement, understanding, or agreement, express or implied, in relation to the subject matter of this agreement.
13.7 INTERPRETATION
- (singular and plural) words in the singular include the plural (and vice versa);
- (gender) words indicating a gender includes the corresponding words of any other gender;
- (defined terms) if a word or phrase is given a defined meaning, any other part of speech or grammatical form of that word or phrase has a corresponding meaning;
- (person) a reference to "person" or "you" includes an individual, the estate of an individual, a corporation, an authority, an association, a consortium or joint venture (whether incorporated or unincorporated), a partnership, a trust, and any other entity;
- (party) a reference to a party includes that party's executors, administrators, successors, and permitted assigns, including persons taking by way of novation and, in the case of a trustee, includes any substituted or additional trustee;
- (this agreement) a reference to a party, clause, paragraph, schedule, exhibit, attachment, or annexure is a reference to a party, clause, paragraph, schedule, exhibit, attachment, or annexure to or of this agreement, and a reference to this agreement includes all schedules, exhibits, attachments, and annexures to it;
- (document) a reference to a document (including this agreement) is to that document as varied, novated, ratified, or replaced from time to time;
- (headings) headings and words in bold type are for convenience only and do not affect interpretation;
- (includes) the word "includes" and similar words in any form is not a word of limitation; and
(adverse interpretation) no provision of this agreement will be interpreted adversely by a party because that party was responsible for the preparation of this agreement or that provision.
Definitions
Client Data
means documents, files, data, materials, or any other information supplied by you to us under or in connection with these Terms or a Subscription, including any Intellectual Property Rights attaching to those materials.
Confidential Information
means information of or provided by a party that is by its nature confidential information, is designated by that party as confidential, or that the other party knows or ought to know is confidential, but does not include information, which is or becomes, without a breach of confidentiality, public knowledge.
Documentation
means all manuals, help files, and other documents supplied by us to you relating to the Software, whether on the Website, in electronic or hardcopy form.
Hosted Services
has the meaning given in clause 1.3.
Intellectual Property Rights
means any and all present and future intellectual and industrial property rights throughout the world, including copyright, trademarks, designs, patents or other proprietary rights, Confidential Information and the right to have information kept confidential, or any rights to registration of such rights whether created before or after the date of these Terms, whether registered or unregistered.
Number of Solution Uses
means the number of uses that you may make of the Solution, in accordance with your Subscription.
Personnel
means, in respect of a party, its officers, employees, contractors (including subcontractors), and agents.
Software
means the software as described on our Website, and which is licenced to you in accordance with clauses 1.2 and 6.1(b).
Software Content
means all materials owned or licensed by us in connection with the Software and any Intellectual Property Rights attaching to those materials.
Solution
includes the Software, Hosted Services, and Support Services (and any other services to be provided to you under these Terms).
Subscription
has meaning given in the first paragraph of these Terms, and includes the limitations set out in clause 1.1(b) and on the Website.
Subscription Fees
has the meaning set out in clause 2(a) of these Terms.
Subscription Period
means the period of your Subscription to the Solution as agreed on the Website, or if no specific period was agreed, then the period from the date the Solution was first provided to you until the date these Terms are terminated or your Subscription is canceled.
Subscription Tier
has the meaning given in the first paragraph of these Terms.
Support Services
has the meaning given in clause 1.4.
User
means end users of your valid uses of the Solution, on your website or any other platform, and any other third party granted access to the Software by you.
User Data
means documents, files, data, materials, or any other information, which is uploaded to the Software by you or a User, including any Intellectual Property Rights attaching to those materials.
Website
means the website at the URL set out in the first paragraph of these Terms, and any other site operated by us in connection with the Solution.
