Effective Date: April 2020
1. Your Acceptance
Thank you for choosing to use EdApp's mobile-first microlearning platform (EdApp).
This agreement (Agreement) is between EdApp Pty Ltd ABN 146 266 03 263 (Company, "us," "we," or "our") and the person or entity agreeing to these terms (you). If you are agreeing to this Agreement not as an individual but on behalf of your company, then "you" means your company, and you are binding your company to this Agreement. By using or accessing EdApp, you agree to these terms and conditions of use (Terms). If you do not agree with these Terms, stop using and uninstall EdApp immediately.
3. No Charge Services
We may offer certain services to you at no charge, including free accounts, trial use, and access to pre-release and beta products (No-Charge Services). Your use of No-Charge Services is subject to any additional terms that we specify and is only permitted for the period designated by us. We may terminate your right to use No-Charge Services at any time and for any reason in our sole discretion, without liability to you. To the maximum extent permitted by applicable law, we disclaim all obligations or liabilities with respect to No-Charge Services, including any support and maintenance, warranty, and indemnity obligations. You may only use a free trial once. Creating duplicate accounts in order to receive multiple free trials is prohibited and will result in the immediate termination of any free trial or associated subscription(s) without notice. The content library contains sponsored content provided to EdApp by industry leaders (Sponsored Content). Sponsored Content contains copyrighted material, trademarks and other proprietary information including, but not limited to, text and graphics. You may use such Sponsored Content on EdApp in the form it is downloaded into your EdApp account and, except as otherwise expressly permitted under copyright law, no copying, redistribution, publication or commercial exploitation of downloaded Sponsored Content will be permitted without the express written permission of the Company and/or the sponsor/copyright owner. No changes in, or deletion of, author attribution, trademark or copyright notice shall be made. Sponsored Content should not be relied on as a substitute for advice from a professional that is appropriate for your specific situation.
4. Subscription Service
Subject to these Terms, we shall make EdApp available to users nominated by you (End Users) on a compatible computer, mobile telephone or handheld device (Device) owned or controlled by you or our End Users. All End Users must establish a named account on the EdApp platform (End User Account). You may request an End User Account by: (i) notifying us in writing; or (ii) ordering End User Accounts via the Site.
The Terms of this Agreement shall also apply to any updates and upgrades subsequently provided by us to you for the use of EdApp. The Company shall host EdApp and may update the functionality, user interface, usability and other user documentation, training and educational information of, and relating to EdApp from time to time in its sole discretion and in accordance with this Agreement as part of its ongoing mission to improve EdApp and customers' use of the service.
Unless permitted by law or as otherwise expressly permitted in these Terms, you must not (nor may you authorise any third person to): (i) rent, lease, distribute, license, sublicense, sell, transfer, assign, distribute or otherwise provide access to EdApp to a third party; (iii) reproduce, modify, adapt, create derivative works of, the Service; (iv) reverse engineer, disassemble, decompile, transfer, exchange or translate the Service or otherwise seek to obtain or derive the source code or API; (iv) remove or tamper with any disclaimers or other legal notices; (v) combine the whole or any part of EdApp with any other software, data or material; (vi) store or use any part of the data you do not own in an archival database or other searchable database. You must promptly notify us in writing of any breach of these conditions of use. If you are interested in reselling EdApp, or incorporating it into your offering, please contact us at email@example.com and we will get back to you.
5. Intellectual Property Rights
“Your Data” means any data, content, images or videos you upload, post or otherwise make available on EdApp. You retain all intellectual property rights in Your Data and you, not the Company, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and ownership or right to use Your Data. Company sponsors, members, directors, officers, employees, agents or representatives shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store Your Data. If your employer has rights to intellectual property you create, you have either i) received permission from your employer to post or make the content available, or ii) secured a waiver from your employer as to all rights in the content. In the event that you violate these Terms or abandon Your Data on EdApp upon termination of this Agreement, Your Data shall become the sole and exclusive property of the Company, and you hereby assign to the Company your entire right, title and interest in and to each and every copyright, or other intellectual property right embodied in Your Data. You also waive any and all moral rights with respect to any such works, including without limitation any and all rights of identification of authorship and/or rights of approval, restriction or limitation on use or subsequent modifications.
You agree that all intellectual property of any sort in or associated with EdApp, including all code, libraries, programs, software, documentation, content (excluding Your Data), databases, systems, logos and trademarks are owned either directly by us or by our licensors. You are not authorised to use any of our intellectual property except as is expressly allowed under these Terms. Subject to these Terms you may modify a template, training course or lesson on EdApp for the purposes of developing customizations and additional features of a template, training course or lesson. Any such modifications constitute “Your Modifications”. Notwithstanding anything in these Terms to the contrary, the Company has no support, warranty, indemnification or other obligation or liability with respect to Your Modifications or their combination, interaction or use with EdApp. You must indemnify, defend and hold us harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and costs) arising out of or in connection with any claim brought against us by a third party relating to Your Modifications (including but not limited to any representations or warranties you make about Your Modifications or EdApp) or your breach of this Section. This indemnification obligation is subject to your receiving (i) prompt written notice of such claim (but in any event notice in sufficient time for you to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defence, or settlement of such claim; and (iii) all reasonably necessary cooperation of the Company at your expense.
We will defend you against any claim brought against you by a third party alleging that EdApp, when used as authorised under this Agreement, infringe a third parties’ intellectual property rights (a “Claim”), and we will indemnify you and hold you harmless against any damages and costs finally awarded by a court of competent jurisdiction or agreed to settlement by us, arising out of a Claim, provided that we have received from you: (a) prompt written notice of the Claim (but in any event notice in sufficient time for us to respond without prejudice); (b) reasonable assistance in the defence and investigation of the Claim, including providing us a copy of the Claim and all relevant evidence in your possession, custody or control; and (c) the exclusive right to control and direct the investigation, defence, and settlement (if applicable) of the Claim. If your use of EdApp is (or in our opinion is likely to be) materially reduced, if required by settlement, or if we determine such actions are reasonably necessary to avoid material liability, we may, at our option and in our sole discretion: (i) procure a license for your continued use of EdApp in accordance with this Agreement; (ii) substitute a substantially functionally similar service; or (iii) terminate your right to continue using EdApp and refund any prepaid amounts for the terminated portion of the service. Our indemnification obligations above do not apply: (1) if EdApp is modified by any party other than us, but solely to the extent the alleged infringement is caused by such modification; (2) if EdApp is used in combination with any non-Company product, software or equipment, but solely to the extent the alleged infringement is caused by such combination; (3) to unauthorized use of EdApp; (4) to any Claim arising as a result of (i) Your Modifications or (ii) any third-party deliverables or components contained with EdApp; or (5) if you settle or make any admissions with respect to a Claim without our prior written consent.
6. Data Protection
This Section shall only apply if and to the extent that: (i) the EU General Data Protection Regulation 2016/679 ("GDPR"); and/or (ii) the laws of other states and territories that create and regulate substantially similar concepts and legal principles as are contained in the GDPR apply to any of the data with which you use EdApp and/or No Charge Services. If this Section applies, the provisions of Appendix 1 (Data Protection Compliance) and Appendix 2 (Data Processing Agreement) shall apply.
EdApp is not designed to appeal to minors. We do not knowingly attempt to solicit or receive any information from anyone under the age of 13. If we discover that a child under 13 has provided us with personal data, we will immediately delete this from our servers. If you are a parent or guardian and you are aware that your child has provided us with personal data, please contact us immediately at firstname.lastname@example.org.
7. Account Registration
You may need to register for an account in order to access or receive any services on EdApp. Any registration information that you provide to us must be accurate, current and complete. You must also update your information so that we may send notices, statements and other information to you by email or through your account. You are responsible for all actions taken through your accounts.
8. Billing and Payment
You agree to pay all Fees in accordance with your Online Order or Statement of Work (SOW). Unless otherwise specified in your Online Order or SOW, you will pay all amounts in the offered currency (as updated from time to time) at the time you place your Online Order or SOW. All amounts are non-refundable, non-cancellable and non-creditable.
In making payments, you acknowledge that you are not relying on future availability of EdApp beyond the current agreed Term or any service upgrades or feature enhancements. If you add End Users during your Term, we will charge you for the increased number of End Users pursuant to the then-currently applicable rates in your next billing cycle. You agree that we may bill your credit card for renewals, additional End Users, and unpaid fees, as applicable.
Fees for Orders where you are paying with a credit card, debit card or other non-invoice form of payment are due the month prior to which you received the Services. For credit cards, or debit cards, as applicable: (i) we will charge you for all applicable Fees when due and (ii) these Fees are considered overdue after the end of the month during which you received the Services.
Where we issue an invoice for payment rather than direct debit, payment shall be due thirty (30) days after the invoice date and shall be considered overdue after such date.
We may enable other forms of payment by making them available on the Site. These other forms of payment may be subject to additional terms which you may have to accept prior using the additional forms of payment.
Overdue payments may bear interest at the rate of one-and-one-half percent per month (or the highest rate permitted by law, if less) from the payment due date until paid in full. You will be responsible for all reasonable expenses (including legal or collection fees) incurred by us in collecting such delinquent amounts, except where such overdue amounts are due to our billing inaccuracies.
You will have thirty days to pay overdue Fees. If you do not pay overdue Fees within thirty days, we will automatically suspend you use of the Service. The duration of this suspension will be until you pay all outstanding Fees.
If you have a monthly billing plan or an annual billing plan commitment, we will continue to charge you Fees during suspension for non-payment and you must pay all outstanding Fees in order to resume use of the Services.
If you remain suspended for non-payment for more than sixty days, we may terminate this Agreement.
You are responsible for any duties, customs fees, or taxes (other than our income tax) associated with the sale of EdApp, including any related penalties or interest (Taxes), and you will pay us for the services without any reduction for Taxes. If we are obligated to collect or pay Taxes, the Taxes will be invoiced to you, unless you provide us with a valid tax exemption certificate authorized by the appropriate taxing authority. If you are required by law to withhold any Taxes from payments to us, you must provide us with an official tax receipt or other appropriate documentation to support such payments.
You acknowledge that the terms of agreement with your respective telecommunications network provider (Network Provider) will continue to apply when using EdApp. As a result, you may be charged by the Network Provider for access to network connection services for the duration of the connection while accessing EdApp or any such third-party charges as they may arise. You accept responsibility for any such charges that arise.
9. Your Obligations
You must use EdApp in accordance with the Acceptable Use Policy and Site Terms and Conditions and any other policies posted on the Site.
You may specify one or more administrators who will have password protected rights to access administrative account(s) for the purposes of administering EdApp (Admin Account(s)) and to administer all End Users permitted to use EdApp and who have established an End User Account. You are responsible for: (a) maintaining the confidentiality of the password and Admin Account(s); (b) designating those individuals who are authorized to access the Admin Account(s); and (c) ensuring that all activities that occur in connection with the Admin Account(s) comply with these Terms. You agree that, unless we provide you with Programme Management services, our responsibilities do not extend to the internal management or administration of EdApp for you and that we are merely a software provider.
Your administrators may have the ability to access, monitor, use, or disclose data available to End Users within the End User Accounts. You will obtain and maintain all required consents from End Users to allow: (i) your access, monitoring, use and disclosure of this data and the Company providing you with the ability to do so and (ii) the provision of EdApp.
By using EdApp, you acknowledge that it is your sole responsibility to ensure the confidentiality and security of any information transmitted from or stored on a Device for the purposes of EdApp, for all transactions and other activities in the End User's name, whether authorized or unauthorized. You understand that use of EdApp involves transmission of Your Data over networks that are not owned, operated or controlled by us, and we are not responsible for any of your data lost, altered, intercepted or stored across such networks. We cannot guarantee that our security procedures will be error-free, that transmissions of your data will always be secure or that unauthorized third parties will never be able to defeat our security measures or those of our third-party service providers.
11. Sharing Content
When you use EdApp, any data, templates, information, content, video, images or other materials of any type (Materials) you enter remains confidential to you unless you choose to share any Materials with EdApp and/or other users.
When you choose to publicly share content, including Materials that you upload, submit or otherwise transmit to or through Service or the Site, or with us, including in the EdApp Content Library
- you warrant that the Materials have not been misappropriated from or breach the intellectual property rights of any other person and that you have the rights to use and provide the Materials and to grant the licenses contained in this Section;
you grant to the Company, EdApp Pty Ltd and its associated entities, and/or other users of our technologies a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sub-licensable, license to use, publish, exercise the copyright and other intellectual property rights you have in the Materials You agree that this license includes the right for us to provide, promote, and improve EdApp and to make Materials submitted to or through EdApp or the Site available to other companies, organizations or individuals who use the Service, with no compensation paid to you;
where applicable and permitted by law, you also agree to waive any "moral rights" (or equivalent under applicable law) such as your right to be identified as the author of any user content, including feedback;
you are responsible for ensuring that the Materials and their use, meaning, effect and placement is not:
unlawful, obscene, harmful, of bad taste, inappropriate and otherwise comply with the Acceptable Use Policy;
- false, misleading or inaccurate, or otherwise in contravention of the Competition and Consumer Act (Cth) 2010;
- in breach of any applicable law;
- confidential or infringes upon any third-party's intellectual property rights;
- defamatory or offensive;
- in breach of these Terms; or
infected with viruses or any other computer code, files or programs that interrupt, destroy or limit the functionality of EdApp; and
you indemnify the Company and/or other users against any and all legal fees, damages and other expenses that may be incurred by us and/or other users as a result of a breach by you of the above Terms. Without limiting any other remedies available, the Company has the unfettered right to remove, delete or modify any Materials that it considers to be inappropriate, at its absolute discretion, without consultation with you.
12. Downloading Materials
When downloading Materials, you are doing so at your own risk and understand that you are downloading content that has been developed by a third party, has not been validated in any way and is not specific to your requirements and should be not be relied upon in any way. It is your responsibility to modify any Materials to suit your own specific requirements. Professional advice from a qualified person should be obtained in order to make the Materials specific for your intended use.
14. Disclaimer, Limitation on Liability and Indemnity
Except as expressly stated in this Agreement, we do not make any representation or warranty (express or implied) in respect of EdApp, any Materials or any other goods or services provided by us to you, including, without limitation, any implied warranty: (i) of merchantability; (ii) of fitness for a particular purpose; (iii) arising from a course of performance, course of dealing, or usage of trade; (iv) of non-infringement of third party rights; or (v) against hidden defects. EdApp, and any Materials are provided on an "as is", "with all faults" and "as available" basis and without any further warranties of any kind. We make no warranty that operation of EdApp or any Materials will be uninterrupted or error free or that all defects will be corrected.
Without limiting the above, you acknowledge that:
- you are using EdApp at your own risk;
- EdApp, or any available Materials on the content library, are not a substitute for professional advice;
- you are solely responsible for the use of EdApp and agree that any published content training courses or lessons conducted using EdApp are usually generic training courses that have been developed by a third-party and have not been validated and are not specific to your requirements. It is your responsibility to ensure any Materials are modified to meet your specific requirements, including obtaining professional advice, if applicable.,; and
- you have not relied on any representation in ordering EdApp or any goods and services from us.
To the maximum extent permitted by law, we exclude completely all liability whatsoever for any claims, liability, loss or damage of any kind however caused (including negligence) arising out of or in connection with any goods or services provided by us including EdApp and its access, use or performance, including, without limitation, we are not liable for: (a) misuse of EdApp or any Materials; (b) use EdApp or any Materials with third party data, software or hardware which is incompatible with EdApp and/or not recommended by us; (c) reduced performance or non-availability of EdApp or any Materials as a result of network connections; or (d) errors in EdApp or any Materials resulting from your configuration or manipulation of EdApp or any Materials, in each case not specifically recommended in writing by us.
Under no circumstances (including but not limited to any act or omission on our part) will we be liable for any loss or damages (including, without limitation, indirect, incidental, special or consequential or punitive damages and damages for loss of profits) whatsoever which result from any use, or any inability to use, EdApp or any Materials.
To the maximum extent permitted by law, our liability for breach of any implied warranty or condition which cannot be excluded is limited at our option to supply of the good or service ordered by you again or paying for their resupply.
Notwithstanding the above, to the maximum extent permitted by law, in no event shall our aggregate liability for any claims arising out of or related to these Terms exceed the amount that you paid, if any, to us for access to or use of EdApp during the twelve (12) months immediately prior to the event giving rise to such liability.
You agree to indemnify EdApp Pty Ltd and its related parties, officers, agents and employees (Indemnified Parties) in respect of any claim, action, damage, loss, liability, cost, charge, expense, outgoing or payment (including legal expenses (on a full indemnity basis) arising from or relating to: (i) your use of EdApp or any Materials; (ii) a breach of these Terms by you; and (iii) your breach of any applicable law.
15. Termination and Suspension
This Agreement is in effect for the Term, unless sooner terminated as permitted in these Terms. Either party may terminate this Agreement before the expiration of the Term if the other party materially breaches any of these Terms and does not cure the breach within thirty (30) days after written notice of the breach, or if the other party ceases to operate, declares bankruptcy, or becomes insolvent or otherwise unable to meet its financial obligations.
We may terminate this Agreement before the expiration of the Term if you are in material breach of these Terms more than two times during the Term notwithstanding any cure of such breaches or if you remain suspended at any time for non-payment of Fees for more than sixty days.
You may terminate this Agreement at any time with notice to the Company, but you will not be entitled to any credits or refunds as a result of convenience termination for prepaid but unused services or subscription Fees.
Except where an exclusive remedy may be specified in these Terms, the exercise by either party of any remedy, including termination, will be without prejudice to any other remedies it may have under these Terms, by law, or otherwise.
Except as set forth in this Section, once the Agreement terminates, then: (i) the rights and licenses granted by the Company to you will cease immediately (except as set forth in this Section); (ii) you (and your End Users) must cease all use of EdApp and any third party Materials; (iii) you must pay to us any and all outstanding Fees for the Term; (iv) you are required to delete EdApp and any third party Materials made available to you under this Agreement, including any Company confidential information from your systems as applicable (including any third party systems operated on your behalf) and, if requested by us, provide written certification to us that you have done so at our request; and (v) you undertake not to attempt to access EdApp or any data stored in EdApp, any third party Materials or the Site after the date of termination.
After termination we will provide you access to, Your Data, provided, generated, transmitted or displayed via EdApp by you or End Users for sixty (60) days, after which we may delete Your Data by removing pointers to it on our active and replication servers and overwriting it over time.
If we become aware of a breach by you of these Terms, then we may specifically request that you suspend the applicable End User Account. If you fail to comply with our request to suspend an account, then we may do so. The duration of any suspension by us will be until the applicable End User has cured the breach which caused the suspension.
We may update or modify these Terms from time to time, including any referenced policies and other documents. If a revision meaningfully reduces your rights, we will use reasonable efforts to notify you (by, for example, sending an email to the billing or technical contact you designate , posting on our Site, through your account, or in EdApp itself). If we modify these Terms during the Term, the modified version will be effective upon your next renewal of the Term, as applicable. In this case, if you object to the updated Terms, as your exclusive remedy, you may choose not to renew, including cancelling any Terms set to auto-renew.
With respect to No-Charge Services, accepting the updated Terms is required for you to continue using the No-Charge Services. If you do not agree to the updated Terms after it becomes effective, you will no longer have a right to use No-Charge Services.
These Terms are governed by the laws of New South Wales, Australia and the parties agree to submit to the exclusive jurisdiction of the courts in New South Wales, Australia.
If any provision of these Terms is held to be invalid, illegal, or unenforceable that provision shall be deemed omitted to the extent that it is invalid, illegal, or unenforceable and the remainder of the Terms shall be construed in a manner as to give greatest effect to the original intention of these Terms.
The waiver of any right or failure of either of us to exercise in any respect any right provided in these Terms in any instance shall not be deemed to be a waiver of such right in the future or a waiver of any right under these Terms.
Neither party will be liable for inadequate performance to the extent caused by a condition (for example, natural disaster, act of war or terrorism, riot, labor condition, governmental action, and internet disturbance) that was beyond the party's reasonable control (Force Majeure).
Your use of any website or software that is not provided by us to access or download EdApp shall be governed by the terms and conditions applicable to that website or software. We are not responsible for any consequences resulting from the use of such website or software, including but not limited to any damage to your property, including your Device, or the transfer of any computer virus or similar malicious code, except to the extent such consequences are caused by EdApp.
Any notices to you may either be posted on the Site or given in writing (which may be by email) to the address last notified by you.. Any notices to us, and any questions, concerns or complaints relating to EdApp shall be in writing and addressed to: EdApp Pty Ltd, Floor 4, 50 Pitt Street, Sydney NSW 2000 Australia or given by email to: email@example.com.
You agree to use your best endeavours to resolve any dispute arising out of or relating to these Terms, with us, prior to resorting to any external dispute resolution process. Please notify us in writing of any dispute you may have.
This Agreement, and any rights and licenses granted hereunder, must not be transferred or assigned by you without our prior express written consent. We may, without restriction, assign this Agreement and our rights and delegate our obligations hereunder to: (i) any of our affiliates or subsidiaries, or (ii) a third party participating in a merger, acquisition, sale of shares or assets, change of control, corporate reorganization or similar transaction in which the Company is participating.
In respect of the subject matter of the Terms, these Terms contain the entire understanding between the parties. Any previous oral and written communications, representations, warranties or commitments are superseded by the Terms and do not affect the interpretation or meaning of the Terms and each of the parties has relied entirely on its own enquiries before entering into the Terms.