Terms and Conditions

All Intellischool customers agree to be bound by our standard Terms and Conditions.

1. Definitions

• the amounts specified under “Fees” in the Commercial Details;
• such amounts as may be agreed in writing by the parties from time to time;

2. Term

1. The Agreement shall come into force upon the Effective Date.
2. The Agreement shall continue in force indefinitely, subject to termination in accordance with Clause 17 or any other provision of these Terms and Conditions.

3. Hosted services

1. If a Customer, an authorised representative of a Customer, or an End User, submits an application to register on the Platform, that party:

   • will be deemed to have irrevocably warranted that during the application process that party provided truthful and accurate information only;
   • will be deemed to have irrevocably warranted that the party applied for registration on the Platform on behalf of, and with the authority and consent of, any entity that the party entered into the Platform account registration form;
   • will be deemed to have irrevocably agreed to be jointly and severally liable for any breach of these Terms and Conditions by that entity.
2. The Provider hereby grants to the Customer a non-exclusive licence to use the Hosted Services during the Term.
3. The licence granted by the Provider to the Customer under Clause 3.1 is subject to the following limitations:

   • the Customer holds a valid license to use any third party software; and
   • the integrated Hosted Services may only be used by the Customer’s officers, employees, sub-contractors, agents, affiliates or related third parties;
   • the Customer endeavours to enable integration between its own software or licensed third party software, and the Intellischool Platform.
4. Except to the extent expressly permitted in these Terms and Conditions or required by law on a non-excludable basis, the licence granted by the Provider to the Customer under Clause 3.2 is subject to the following prohibitions:

   • the Customer must not sub-license its right to access and use the Hosted Services;
   • the Customer must not permit any unauthorised person or application to access or use the Hosted Services;
   • the Customer must not make any alteration to the Platform, except as permitted by the Documentation; and
   • the Customer must not conduct or request that any other person conduct any load testing or penetration testing on the Platform or Hosted Services without the prior written consent of the Provider.
5. The Customer shall implement and maintain reasonable security measures relating to the Access Credentials to ensure that no unauthorised person or application may gain access to the Hosted Services.
6. The Provider shall use all reasonable endeavours to maintain the availability of the Hosted Services to the Customer at the gateway between the public internet and the network of the hosting services provider for the Hosted Services, but does not guarantee 100% availability.
7. The Customer must comply with the Provider's Acceptable Use Policy, and must ensure that all persons using the Hosted Services with the authority of the Customer, including End Users, or by means of the Access Credentials comply with the Acceptable Use Policy. The Acceptable Use Policy may be accessed at: https://help.intellischool.co/knowledge/acceptable-use-policy​
8. The Customer must not use the Hosted Services in any way that causes, or may cause, damage to the Hosted Services or Platform or impairment of the availability or accessibility of the Hosted Services.
9. The Customer must not, and must ensure that its authorised End Users do not, use the Hosted Services in any way that uses excessive Platform resources and as a result is liable to cause a material degradation in the services provided by the Provider to its other customers using the Platform; and the Customer acknowledges that the Provider may use reasonable technical measures to limit the use of Platform resources by the Customer for the purpose of assuring services to its customers generally.
10. The Customer must not, and must ensure that its authorised End Users do not, use the Hosted Services:

    • in any way that is unlawful, illegal, fraudulent or harmful; or
    • in connection with any unlawful, illegal, fraudulent or harmful purpose or activity.
11. For the avoidance of doubt, the Customer has no right to access the software code (including object code, intermediate code and source code) of the Platform, either during or after the Term.
12. The Provider may suspend the provision of the Hosted Services if any amount due to be paid by the Customer to the Provider under the Agreement is overdue, and the Provider has given to the Customer at least 30 days' written notice, following the amount becoming overdue, of its intention to suspend the Hosted Services on this basis.

4. Customer data

1. The Customer hereby grants to the Provider a non-exclusive licence to copy, reproduce, store, distribute, publish, export, adapt, edit and translate the Customer Data to the extent reasonably required for the performance of the Provider's obligations and the exercise of the Provider's rights under the Agreement (but for no other purpose). The Customer also grants to the Provider the right to sub-license these rights to its hosting, connectivity and telecommunications service providers, subject to any express restrictions elsewhere in the Agreement.
2. The Customer warrants to the Provider that the Customer Data will not infringe the Intellectual Property Rights or other legal rights of any person, and will not breach the provisions of any law, statute or regulation, in any jurisdiction and under any applicable law.
3. Unless the Customer specifically opts out in writing, subject to compliance with Provider’s privacy policy, the Customer grants to Provider an irrevocable, non-exclusive, royalty-free, worldwide license to use Customer Data in order to create Derived Data as well as to utilise the Derived Data in any manner, including for commercial purposes. An example of commercial purposes includes, but is not limited to, the sale of research as a product of the Derived Data. The Provider shall never sell the Derived Data itself.

5. Support services

1. The Provider shall provide the Support Services to the Customer during the Term.
2. The Provider shall provide the Support Services with reasonable skill and care.
3. The Customer may use the help desk for the purposes of requesting and, where applicable, receiving the Support Services; and the Customer must not use the help desk for any other purpose.
4. The Provider may suspend the provision of the Support Services if any amount due to be paid by the Customer to the Provider under the Agreement is overdue, and the Provider has given to the Customer at least 30 days' written notice, following the amount becoming overdue, of its intention to suspend the Support Services on this basis.

6. Customer obligations

1. Customer will:

• provide all necessary governmental, legal and regulatory licences, consents, permits, information, documentation co-operation, support and advice as are reasonably necessary to enable the Provider to perform its obligations under the Agreement;
• only permit authorised End Users to access the Platform;
• ensure that End Users register on the Platform prior to accessing the Platform;
• remain responsible for all End Users in relation to the End User’s use and access of the Platform; and
• obtain consent from an End User prior to the End User disclosing Personal Data to the Provider or directly into the Platform.

7. No assignment of Intellectual Property rights

1. ​Nothing in these Terms and Conditions shall operate to assign or transfer any Intellectual Property Rights from the Provider to the Customer, or, other than the rights specified in clause 4.3, from the Customer to the Provider.
2. The Provider undertakes that if used by the Customer in accordance with these Terms and Conditions, the Platform and the Hosted Services provided to the Customer will not, to the best of the Provider's knowledge and belief, infringe any third party rights, including Intellectual Property Rights.

8. Fees

1. The Customer shall pay the Fees to the Provider, or their nominated representative, in accordance with these Terms and Conditions.
2. All amounts stated in or in relation to these Terms and Conditions are, unless the context requires otherwise, stated exclusive of any applicable value added taxes, which will be added to those amounts and payable by the Customer to the Provider.
3. The Provider may elect to vary any element of the Fees by giving to the Customer not less than 30 days' written notice of the variation.

9. Payments

1. The Customer must pay the Fees to the Provider, or their nominated representative, in advance of the period to which they relate.
2. If the Customer does not pay any amount properly due under these Terms and Conditions:

   • where the Fees are payable to the Provider directly, the Provider may charge the Customer interest on the overdue amount at the rate of 8% per annum above the Reserve Bank of Australia base rate from time to time (which interest will accrue daily until the date of actual payment and be compounded at the end of each calendar month); or
   • where the Fees are payable to the Provider's nominated representative, said representative may charge the Customer interest on the overdue amount at the rate specified in the terms agreed upon by the Customer and the representative.

10. Data protection

1. Each party shall comply with the Data Protection Laws with respect to the processing of the Customer Personal Data.
2. The Customer warrants to the Provider that it has the legal right to disclose all Personal Data that it does in fact disclose to the Provider under or in connection with the Agreement, including the Personal Data of End Users.
3. The Provider will handle all Personal Data in accordance with its privacy policy which can be found at: https://intellischool.co/privacy.
4. The Customer agrees to comply with the privacy standards set out in the Provider’s privacy policy and the Customer shall make available to the Provider all information necessary to demonstrate the compliance of the Customer with its obligations under this Clause 10 and the Data Protection Laws.
5. Notwithstanding any other provision of the Agreement, the Provider may process the Customer Personal Data.
6. The Provider and the Customer shall ensure that persons authorised to process the Customer Personal Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.
7. The Provider and the Customer shall each implement appropriate technical and organisational measures to ensure an appropriate level of security for the Customer Personal Data.

11. Warranties

1. Each party warrants to the other party that:

   • it has the legal right and authority to enter into the Agreement and to perform its obligations under these Terms and Conditions;
   • it will comply with all applicable legal and regulatory requirements applying to the exercise of its rights and the fulfilment of its obligations under these Terms and Conditions; and
   • it has or has access to all necessary know-how, expertise and experience to perform its obligations under these Terms and Conditions.
2. All of the parties' warranties and representations in respect of the subject matter of the Agreement are expressly set out in these Terms and Conditions. To the maximum extent permitted by applicable law, no other warranties or representations concerning the subject matter of the Agreement will be implied into the Agreement or any related contract.
3. The Customer warrants to the Provider that consent was acquired from the End User to collect, hold, use and disclose all Personal Data of the End User that is held by the Customer and which may be shared with the Provider.
4. The Provider warrants that:

   1. the Platform will materially conform with the relevant specifications agreed between the Customer and the Provider;
   2. the Services will be performed in accordance with accepted industry standards; and
   3. the Provider will use reasonable endeavours to ensure that the Services comply with all laws applicable to it and that the Platform and Services provided will not infringe third party rights (including Intellectual Property Rights).

12. Acknowledgements and warranty limitations

1. The Customer acknowledges that complex software is never wholly free from defects, errors and bugs; and subject to the other provisions of these Terms and Conditions, the Provider gives no warranty or representation that the Hosted Services will be wholly free from defects, errors and bugs but the Provider will use its best efforts to identify, and to rectify any defect or error in the software in accordance with its service level statement upon becoming aware of them..
2. The Customer acknowledges that complex software is never entirely free from security vulnerabilities; and subject to the other provisions of these Terms and Conditions, the Provider gives no warranty or representation that the Hosted Services will be entirely secure but the Provider will use its best efforts in accordance with appropriate industry practice to identify, and to rectify any security vulnerabilities, and to ensure that the Customer's systems are not exposed to any malicious code or unauthorised access via the Platform or the Hosted Services.
3. The Customer acknowledges that the Hosted Services are designed to be compatible only with that software and those systems specified as compatible in the Documentation and the Provider does not warrant or represent that the Hosted Services will be compatible with any other software or systems.
4. The Customer acknowledges that the Provider will not provide any legal, financial, accountancy or taxation advice under these Terms and Conditions or in relation to the Hosted Services; and, except to the extent expressly provided otherwise in these Terms and Conditions, the Provider does not warrant or represent that the Hosted Services or the use of the Hosted Services by the Customer will not give rise to any legal liability on the part of the Customer or any other person.

13. Limitations and exclusions of liability

1. 13.1. Nothing in these Terms and Conditions will:

   • limit or exclude any liability for death or personal injury resulting from negligence;
   • limit or exclude any liability for fraud or fraudulent misrepresentation;
   • limit any liabilities in any way that is not permitted under applicable law; or
   • exclude any liabilities that may not be excluded under applicable law.
2. The limitations and exclusions of liability set out in this Clause 13 and elsewhere in these Terms and Conditions:

   • are subject to Clause 13.1; and
   • govern all liabilities arising under these Terms and Conditions or relating to the subject matter of these Terms and Conditions, including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty, except to the extent expressly provided otherwise in these Terms and Conditions.
3. Neither party shall be liable to the other party in respect of any losses arising out of a Force Majeure Event.
4. The Provider will not be liable to the Customer in respect of:

   • any loss of profits or anticipated savings.
   • any loss of revenue or income.
   • any loss of use or production.
   • any loss of business, contracts or opportunities.
   • any loss or corruption of any data, database or software.
   • any special, indirect or consequential loss or damage.
5. The liability of the Provider to the Customer under the Agreement in respect of any event or series of related events shall not exceed the total amount paid and payable by the Customer to the Provider under the Agreement in the 12 month period preceding the commencement of the event or events.

14. Indemnities

1. The Customer shall indemnify and shall keep indemnified the Provider against any and all liabilities, damages, losses, costs and expenses (including legal expenses and amounts reasonably paid in settlement of legal claims) suffered or incurred by the Provider and arising directly or indirectly as a result of:

   1. use of the Platform by the Customer or End Users;
   2. any breach by the Customer of these Terms and Conditions;
   3. a negligent act or omission by Customer; (each of the above a “Customer Indemnity Event”).
2. The Provider will:

   1. upon becoming aware of an actual or potential Customer Indemnity Event, notify the Customer;
   2. provide to the Customer all such assistance as may be reasonably requested by the Customer in relation to the Customer Indemnity Event;
   3. not admit liability to any third party in connection with the Customer Indemnity Event or settle any disputes or proceedings involving a third party and relating to the Customer Indemnity Event without the prior written consent of the Customer.
3. The indemnity protection set out in this Clause 14 shall be subject to the limitations and exclusions of liability set out in the Agreement.

15. Force Majeure event

1. If a Force Majeure Event gives rise to a failure or delay in either party performing any obligation under the Agreement (other than any obligation to make a payment), that obligation will be suspended for the duration of the Force Majeure Event.

16. Termination

1. Either party may terminate the Agreement by giving to the other party at least 60 days' written notice of termination.
2. Either party may terminate the Agreement immediately by giving written notice of termination to the other party if the other party commits a material breach of these Terms and Conditions.

17. Effects of termination

1. Upon the termination of the Agreement, all of the provisions of these Terms and Conditions shall cease to have effect, save that the following provisions of these Terms and Conditions shall survive and continue to have effect (in accordance with their express terms or otherwise indefinitely): Clauses 4.1, 7, 10, 11, 13, 14, 17, and 20-22.
2. Except to the extent that these Terms and Conditions expressly provides otherwise, the termination of the Agreement shall not affect the accrued rights of either party.
3. Within 30 days following the termination of the Agreement for any reason:

   • the Customer must pay to the Provider any Fees in respect of Services provided to the Customer before the termination of the Agreement; and
   • the Provider must refund to the Customer any Fees paid by the Customer to the Provider in respect of Services that were to be provided to the Customer after the termination of the Agreement,

   without prejudice to the parties' other legal rights.

18. Notices

1. Any notice from one party to the other party under these Terms and Conditions must be given by one of the following methods:

   • sent by email to the relevant email address specified through the Hosted Services, in which case the notice shall be deemed to be received upon receipt of the email by the recipient's email server; or
   • sent using the contractual notice mechanism incorporated into the Hosted Services, in which case the notice shall be deemed to be received upon dispatch,

19. Subcontracting

1. Subject to any express restrictions elsewhere in these Terms and Conditions, the Provider may subcontract any of its obligations under the Agreement. The Provider will be held ultimately responsible for the actions of any subcontractors.

20. General

1. No breach of any provision of the Agreement shall be waived except with the express written consent of the party not in breach.
2. If any provision of the Agreement is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions of the Agreement will continue in effect. If any unlawful and/or unenforceable provision would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the provision will continue in effect (unless that would contradict the clear intention of the parties, in which case the entirety of the relevant provision will be deemed to be deleted).
3. The Provider may vary the Agreement by giving to the Customer at least 14 days' written notice of the variation.
4. The Customer hereby agrees that the Provider may assign the Provider's contractual rights and obligations under the Agreement to any third party. Save to the extent expressly permitted by applicable law, the Customer must not without the prior written consent of the Provider assign, transfer or otherwise deal with any of the Customer's contractual rights or obligations under the Agreement.
5. The Agreement is made for the benefit of the parties, and is not intended to benefit any third party or be enforceable by any third party. The rights of the parties to terminate, rescind, or agree any amendment, waiver, variation or settlement under or relating to the Agreement are not subject to the consent of any third party.
6. The Commercial Details, together with these Terms and Conditions and any Schedules, shall constitute the entire agreement between the parties in relation to the subject matter of that Services Order Form, and shall supersede all previous agreements, arrangements and understandings between the parties in respect of that subject matter.

21. Interpretation

1. In these Terms and Conditions, a reference to a statute or statutory provision includes a reference to:

   • that statute or statutory provision as modified, consolidated and/or re-enacted from time to time; and
   • any subordinate legislation made under that statute or statutory provision.
2. The Clause headings do not affect the interpretation of these Terms and Conditions.
3. References in these Terms and Conditions to "calendar months" are to the 12 named periods (January, February and so on) into which a year is divided.
4. In these Terms and Conditions, general words shall not be given a restrictive interpretation by reason of being preceded or followed by words indicating a particular class of acts, matters or things.

22. Governing law and jurisdiction

1. The Agreement shall be governed by and construed in accordance with the laws of Victoria, Australia.
2. The courts of Victoria, Australia shall have exclusive jurisdiction to adjudicate any dispute arising under or in connection with the Agreement.