Child Aware Technology Operations Pty Ltd (Child Aware Technology)
The Organisation registering for a ChildAware account through childaware.com, the details of which are provided as part of the online subscription process (‘the Customer’).
|Commencement Date||The date the Customer signs up online to use the Solution.|
|Initial Term||1 year from the Commencement Date.|
|Software and Support Services||
1 THIS AGREEMENT
1.1 YOUR ACCEPTANCE
The Customer agrees to this agreement comprised of clauses 1 to 19 (Terms and Conditions), attached Schedules and the Key Details, by ticking the box that states that you agree to the Child Aware Customer Terms and Conditions. If you do not agree to these Terms and Conditions do not tick the box stating that you agree to the ChildAware Customer Terms and Conditions.
The individual who agrees to the Child Aware Customer Terms and Conditions warrants that they have the power and authority to enter into this agreement on behalf of, and to bind, the organisation for which this account is being created.
1.2 MEANING OF CAPITALISED WORDS AND PHRASES
Capitalised words and phrases used in these Terms and Conditions have the meaning given:
- to that word or phrase in the Key Details;
- by the words immediately preceding any bolded and bracketed word(s) or phrase(s); or
- in the definitions in clause 19 of this agreement.
1.3 ORDER OF PRECEDENCE
Subject to clause 1.3(b) and unless otherwise expressly stated, in the event of any inconsistency between these Terms and Conditions and the Key Details or between the Terms and Conditions and a Schedule, the Terms and Conditions will prevail to the extent of such inconsistency.
Any Special Conditions set out in the Key Details are incorporated in these terms and conditions and will replace and prevail over any other terms to the extent of any inconsistency.
The Customer acknowledges and agrees that:
- (information only) any information provided by Child Aware Technology to the Customer is general in nature, may not be suitable for the Customer’s circumstances and is in no way provided as legal advice and should be not relied on as such;(information only) any information provided by Child Aware Technology to the Customer is general in nature, may not be suitable for the Customer’s circumstances and is in no way provided as legal advice and should be not relied on as such;
- (no guarantee of compliance) Child Aware Technology makes no representations, guarantees or warranties that use of the Software will bring the Customer into compliance with applicable Laws; and
- (regulatory compliance) it is the Customer’s responsibility to comply with Laws applicable to the Customer’s business, including applicable child safety laws.
- (no liability) Child Aware Technology has no liability to you or any other person or organisation for your non-compliance with applicable laws;
- (third party content) Child Aware Technology allows for the sharing of information between Customers and Customer Users. We accept no responsibility for information uploaded or provided by Customers and Customer Users and make no representation, warranty or guarantee about the quality, suitability, accuracy, reliability, currency or completeness of such information.
- This agreement commences on the Commencement Date and will continue for the Initial Term, and any Renewal Term, unless terminated earlier in accordance with clause 14 (Term).
- Subject to clause 3(c), upon expiration of the Initial Term, this agreement will automatically renew on the terms in force immediately prior to such expiration, for a period of 12 months (Renewal Term). Each Renewal Term will automatically renew on the same terms of this clause 3(b).
- This agreement will not automatically renew on expiry of the Initial Term or a Renewal Term (Renewal Date) if either party provides written notice that this agreement will not renew at least 60 Business Days prior to the Renewal Date.
4 THE SOLUTION
4.1 SCOPE OF SOLUTION
- During the Term, Child Aware Technology will, subject to the Customer’s compliance with this agreement, provide to the Customer:
- access to the software described at Schedule 1 (Software);
- access to information and data (including data files, written text, computer software, location data, audio files or other sounds, photographs, videos or other images) uploaded by Child Aware Technology to the Software; and
- hosting services for Customer Materials,
(together, the Solution).
- Child Aware Technology may from time to time in its absolute discretion make changes to, add or remove functions or other aspects of, the Solution or install new versions of, the Software (Solution Update).
- Where Child Aware Technology removes functions from the Solution without providing an alternative means to achieve the removed function, the Customer may terminate the agreement by giving 30 days notice provided the removed function was used by the Customer prior to the relevant Solution Update.
- Unless otherwise agreed, Child Aware Technology may, in its absolute discretion:
- not provide any part of the Solution until the Customer has paid any Fees in respect of the Solution; and
- withhold delivery of any part of or all of the Solution until the Customer has paid the invoice in respect of the Solution.
4.2 SOFTWARE LICENCE
During the Term, Child Aware Technology grants to the Customer a non-exclusive, non-transferable, non-sub-licensable, limited licence to:
- use the Software; and
- invite Customer Users to use, and validate requests by Customer Users to use, the Software,
solely for the purposes of the Customer and Customer Users uploading, accessing and giving access to documentation, policies, training materials, feedback, complaints, incident reports and audit reports relating to child safety on the terms of this agreement (the Purpose).
4.3 HOSTED SERVICES
- The Customer acknowledges and agrees that Child Aware Technology may use third party storage servers to host the Solution and Customer Materials through cloud-based services, located in Australia.
4.4 QUALITY AND AVAILABILITY
- Child Aware Technology does not guarantee that the Solution will be free from errors or defects or that the Solution or Customer Materials will be accessible or available at all times.
- Child Aware Technology may temporarily suspend the Solution for the purpose of planned maintenance or upgrade notified in advance or without notice in the event that emergency maintenance is required.
- The Solution is accessible through the internet. The Customer is responsible for providing and maintaining hardware, software, internet access and other services needed to access the Solution and ensuring that they meet the minimum specifications made available or provided by Child Aware Technology from time to time.
4.5 DATA SECURITY
- Child Aware Technology will use reasonable efforts to ensure that Customer Materials are stored securely and maintain appropriate safety and security procedures and safeguards against Security Breaches. However, and to the maximum extent permitted by Law, Child Aware Technology does not accept responsibility or liability for any Security Breach, including due to hacking, malware, ransomware, viruses, malicious computer code or other forms of interference.
- If a party becomes aware of any potential, actual or suspected Security Breach, it will notify the other party without undue delay, and both parties will work together in good faith to respond to the breach in compliance with applicable Laws including to limit, stop or otherwise remedy any potential, actual or suspected Security Breach.
- If Customer Materials are lost due to a system failure (e.g. a database or webserver crash), Child Aware Technology does not guarantee that any backup will be available, or if available that such a backup will be free from errors or defects. To the maximum extent permitted by Law, Child Aware Technology does not accept responsibility or liability for any such system failures or unavailability of back ups or back ups which contain errors or defects.
4.6 SUPPORT SERVICES
During the Term, Child Aware Technology will provide Support Services to the Customer and will use its reasonable endeavours to provide such Support Services in accordance with Schedule 2 of this agreement.
5 NUMBER OF CUSTOMER ENROLMENTS
- The Customer acknowledges and agrees that the Declared Number of Enrolments accurately represents:
- where the Customer is an educational institution, the actual number of individual students enrolled to study at the Customer’s educational institution;
- where the Customer is an education and care service, the maximum number of children the Customer is licensed to provide education and care services to at the Customer’s premises;
- where the Customer is any other type of organisation, the number of children enrolled to receive the goods and services provided by the Customer
(as applicable, the Actual Number of Enrolments).
- The Customer represents and warrants that any information the Customer provides to Child Aware Technology regarding the Declared Number of Enrolments is accurate and correct at the time such information was provided.
- The Customer must:
- notify Child Aware Technology if there are any changes to the Actual Number of Enrolments which would render the Declared Number of Enrolments no longer accurately representing its Actual Number of Enrolments;
- provide any information requested by ChildAware to verify the Actual Number of Enrolments;
- update the Declared Number of Enrolments to accurately reflect the Actual Number of Enrolments where the Declared Number of Enrolments is lower than the Actual Number of Enrolments.
6 CUSTOMER’S OBLIGATIONS
6.1 CUSTOMER MATERIAL
- The Customer acknowledges and agrees:
- that the Customer must ensure that all Customer Materials are accurate, complete and up to date; and
- to promptly update Customer Materials that are no longer accurate, complete up to date.
- The Customer must:
- obtain, and ensure that Customer Users obtain, any necessary consents (including such consents required under applicable Privacy Laws), to provide the Customer Materials to Child Aware Technology;
- promptly provide reasonable evidence of the consents to Child Aware Technology on request; and
- notify Child Aware Technology promptly in writing of any changes in, or withdrawal of, any consent provided if such changes or withdrawal may affect Child Aware Technology’s use of the Customer Materials for the purposes set out at 9.1(a).
6.2 USE OF SOLUTION
- The Customer must not encourage or permit or facilitate anyone to use the Solution for any purpose other for the Purpose. Unauthorised purposes include:
- to intimidate, harass, impersonate, stalk, threaten, bully or endanger anyone (including any Customer User) or distribute unsolicited commercial content, junk mail, spam, bulk content or harassment to anyone (including any Customer User);
- to download or upload any material which:
- is obscene, vulgar, pornographic, indecent, offensive or explicit;
- is harmful, discriminatory, racist, defamatory or maliciously false;
- infringes any third party Intellectual Property Rights;
- is invasive to another person’s privacy;
- contains any viruses or other harmful code, or otherwise compromise the security or integrity of the Software or any network or system; or
- breaches or infringes any applicable Laws;
- sharing account information, including log in details or passwords, with any other person and to allow use of their account by any person who is not the account holder;
- use in a manner that is illegal or fraudulent or facilitates illegal or fraudulent activity;
- use in a way which infringes the Intellectual Property Rights of Child Aware Technology or any third party;
- adapting, modifying or tampering in any way with the Solution;
- removing or altering any copyright, trademark or other notice on or forming part of the Solution or Documentation;
- publishing or otherwise disclosing the Solution or Documentation to the public, including by making it available online or sharing it with third parties;
- selling, loaning, transferring, sub-licencing, hire or otherwise disposing of the Solution or Documentation to any third party;
- decompiling or reverse engineering the Solution or any part of it, or otherwise attempting to derive its source code;
- attempting to circumvent any technological protection mechanism or other security feature of the Solution; or
- permitting any person other than the Customer or Customer Users to use or access the Solution or Documentation.
- The Customer acknowledges and agrees:
- that it is responsible for the acts and omissions of Customer Users and it must ensure that Customer Users perform their obligations under Child Aware Individual User Terms and Conditions available at childaware.com;
- to notify Child Aware Technology without delay if it becomes aware or reasonably suspects a use of the Solution in breach of this agreement (including for a purpose other than the Purpose), the Child Aware Individual User Terms and Conditions available at childaware.com, or otherwise any illegal or unauthorised use of the Solution (collectively the Unauthorised Uses);
- to indemnify ChildAware Technology for any Loss suffered or incurred by Child Aware Technology as a result of, or in connection with, any Unauthorised Use; and
- that Child Aware Technology will have no liability for Loss suffered or incurred by the Customer or a Customer User in connection with an Unauthorised Use by, or other act or omission of, a Customer User.
6.4 MONITORING AND SUSPENSION
- The Customer acknowledges and agrees that Child Aware Technology:
- has the right to monitor the Customer and Customer Users’ access to or use of the Solution for the purpose of operating Child Aware Technology, to ensure compliance with this agreement, or to comply with any law or order of a court; and
- may immediately suspend or terminate access by the Customer or a Customer User to the Solution or part of the Solution in the event of an Unauthorised Use.
7 THIRD PARTY MATERIAL AND TERMS
- Through its use of Child Aware, the Customer or a Customer User may access content provided by a third party (Third Party Content). Child Aware Technology makes no representation or warranty about the quality, suitability, accuracy, reliability, currency or completeness of any Third Party Content, is not responsible for and will not be liable for any Loss suffered by the Customer or a Customer User in connection with Third Party Content.
- The Solution may incorporate third party products and services. The Customer must comply with any third party terms and conditions notified to the Customer by Child Aware Technology from time to time.
- The Customer must pay to Child Aware Technology the Fees following the method agreed as part of the online subscription process and in accordance with this clause 8.
- To the maximum extent permitted by law, any Fees paid in accordance with this agreement are non-refundable.
- The monthly Fees are determined by the Actual Number of Enrolments or, if higher, the Declared Number of Enrolments in accordance with the following formula:
- “F” means the Fee;
- “N” means the Actual Number of Enrolments or Declared Number of Enrolments, as applicable; and
- “R” means the applicable monthly licence rate agreed as part of the online subscription process (Licence Rate).
8.2 TRUE-UP AND INCREASE OF DECLARED NUMBER OF ENROLMENTS
The Customer acknowledges and agrees that:
- it has an ongoing obligation during the Initial Term and for each Renewal Term to update the Declared Number of Enrolments for its organisation to ensure that the Declared Number of Enrolments is not lower than the Actual Number of Enrolments;
- during the Term, Child Aware Technology may from time conduct a true-up to confirm that the Declared Number of Enrolments accurately represents the Actual Number of Enrolments;
- the Customer will provide all information and assistance required by Child Aware Technology to confirm the Actual Number of Enrolments;
- where the Actual Number of Enrolments is higher than Declared Number of Enrolments, Child Aware Technology will in accordance with section 8.4(d) charge the Customer the unpaid Fee for the remainder of the current Billing Period calculated on a pro rata basis to the nearest second as follows:
- where the payment arrangement agreed as part of the online sign-up process sets out the Billing Period as monthly: A=(B−C)×D
where the payment arrangement agreed as part of the online sign-up process sets out the Billing Period as annual: (A=(B−C)×D)×N/12
“A” means the Additional Fee;
“B” means the Actual Number of Enrolments ;
“C” means the Declared Number of Enrolments;
“D” means the Licence Rate;
“N” means the number of outstanding months in the current Billing Period.
- where the Customer updates the Declared Number of Enrolments in accordance with section 8.2(a),ChildAware will in accordance with section 8.4(d) charge the Customer the unpaid Fee for the remainder of the current Billing Period calculated as the additional Declared Number of Enrolments multiplied by the Licence Rate, on a pro rata basis.
8.3 FEE INCREASE
Child Aware Technology reserves the right to increase the Fees upon fourteen (14) calendar days’ prior notice to the Customer, provided that, if the Customer does not agree with such Fee increase, the Customer may terminate this agreement immediately upon notice, provided that such notice of termination is received within fourteen (14) calendar days of the date of notice of the Fee increase.”
- The first Fee is due on the Commencement Date (Initial Fee).
- Subsequent Fees are due:
- where the payment arrangement agreed as part of the online sign-up process sets out the Billing Period as monthly, the same day in each subsequent month as the day of the Commencement Date;
- where the payment arrangement agreed as part of the online sign-up process sets out the Billing Period as annual, the same day in each subsequent year as the day of the Commencement Date.
- After payment of the Initial Fee, subsequent Fees will be automatically debited from the nominated payment method provided by the Customer to Child Aware Technology on or around the day the Fee is due as described at clause 8.4(a).
- If Child Aware issues an invoice to the Customer for the payment of any unpaid fee under clause 8.2(d) or clause 8.2(e), payment must be made by the Customer:
- at the time(s) specified on the invoice; or
- if no time is specified in the invoice, within 14 days of receiving the invoice.
Unless otherwise indicated, the Fees do not include GST. In relation to any GST payable for a taxable supply by Child Aware Technology, the Customer must pay the GST subject to Child Aware Technology providing a tax invoice.
8.6 CARD SURCHARGES
Child Aware Technology reserves 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).
8.7 LATE PAYMENT
- If the Customer does not pay a Fee by the due date for payment, Child Aware Technology may, to the full extent permitted by law:
- immediately suspend the Customer’s access to the Solution;
- where the payment is more than 60 days overdue, and without limiting any of Child Aware Technology’s other rights under this agreement, charge interest on overdue unpaid amounts at a rate of 5% per annum, on each amount outstanding, accruing daily and compounding monthly, from the due date for payment to the date on which payment of the Fee and any interest accrued is received by Child Aware Technology;
- where the payment is more than 90 days overdue, and without limiting any of ChildAware Technology’s other rights under this agreement, Child Aware Technology may seek to recover the amount due by referring the matter to a collection agency; and/or
- terminate this agreement immediately by giving written notice to the Customer.
- The Customer must reimburse Child Aware Technology for any costs it incurs, including any legal costs, in recovering the amount due or enforcing any of its rights under this clause 8.7.
9 INTELLECTUAL PROPERTY
9.1 CUSTOMER MATERIALS
- During the Term, the Customer grants to Child Aware Technology a non-exclusive, royalty free, non-transferable, worldwide and irrevocable licence to use the Customer Materials, including the Intellectual Property Rights in such Customer Materials, and to allow its related bodies corporate and third party service providers to use the Customer Materials, for the purpose of this agreement including to provide the Solution or develop and improve the Solution or other products or services of Child Aware Technology.
9.2 THIRD PARTY INTELLECTUAL PROPERTY RIGHTS
- The Customer:
- warrants that Child Aware Technology’s use of Customer Materials in accordance with this agreement will not infringe any third-party Intellectual Property Rights; and
- indemnifies Child Aware Technology from and against all Losses which ChildAware incurs as a result of or in connection with such infringement.
- Child Aware Technology may remove Customer Materials from the Solution if, in Child Aware’s reasonable opinion, there is or is likely to be an infringement of any third party Intellectual Property Rights.
9.3 CHILD AWARE TECHNOLOGY INTELLECTUAL PROPERTY
- All rights, including Intellectual Property Rights, in and to the Solution and Documentation (including any upgrade to, enhancements and new versions of the Solution, and all underlying systems and material used to provide the Solution such as software, text, images, video, audio and Data) are Child Aware Technology IP.
- The Customer will not under or in connection with this agreement acquire Intellectual Property Rights in any Child Aware Technology IP.
- Any Developed Intellectual Property will be solely and exclusively owned by Child Aware Technology on creation.
- If the Client provides Child Aware Technology with ideas, comments or suggestions relating to the Solution (together Feedback):
- all Intellectual Property Rights in that Feedback, and anything created as a result of that Feedback (including new material, enhancements, modifications or derivative works), are owned solely by the Child Aware Technology upon creation; and
- Child Aware Technology may use or disclose such Feedback for any purpose.
- During the Term, Child Aware Technology grants to the Customer a non-exclusive, royalty free, non-transferable, Australia wide, non sub-licensable and revocable licence to use Child Aware Technology IP and any Developed Intellectual Property to the extent required for the Customer to use the Solution.
10 CONFIDENTIALITY AND RESTRAINT
10.1 CONFIDENTIAL INFORMATION
Each party must treat as confidential Confidential Information of the other party, only use it for the purpose of exercising its rights or performing its obligations under this agreement, and will not disclose Confidential Information of the other party to any third party except:
- with the other party's prior written consent;
- as required by Law; or
- to its Personnel, professional advisors and auditors, on a need to know basis for the purposes of performing its obligations under this agreement, provided those persons first agree to observe the confidentiality of the information (Additional Disclosees).
For the duration of this agreement and for two years following the end of this agreement, the Customer must not employ or engage (or be knowingly involved in another employing or engaging) any officers or employees of Child Aware Technology with which the Customer had contact during the course of the agreement.
If either party becomes aware of a suspected or actual breach of this clause 10 by that party or an Additional Disclosee, that party will immediately notify the other party and take reasonable steps required to prevent, stop or mitigate the suspected or actual breach.
- Each party will comply with the Privacy Laws applicable to it when collecting or handling Personal Information under this agreement.
- Before a Customer or a Customer User disclose any Personal Information to Child Aware Technology (including through the Solution), the Customers must obtains all consents and approvals, and provide all notices, including to and from individual data subjects, as required for the collection, receipt, use, processing, and disclosure of Personal Information by Child Aware Technology in accordance with this agreement and the applicable Law.
- The Customer must ensure that Customer Materials does not include any government identification numbers, health information or any information that is designated as sensitive under the Privacy Laws, unless the Customer is required to collect and hold this information by Law (including Law relating to child safety), or where a permitted general situation exists (as that term is defined under the Privacy Act 1988 (Cth).
- To the maximum extent permitted by Law, all express or implied representations and warranties (whether relating to fitness for purpose or performance, or otherwise) not expressly stated in this agreement are excluded.
- Nothing in this agreement is intended to limit the operation of the Australian Consumer Law contained in the Competition and Consumer Act 2010 (Cth) (ACL) and to exclude, restrict or modify any rights which you may have under it which may not be excluded, restricted or modified. Under the ACL, the Customer may be entitled to certain remedies (like a refund, replacement or repair) if there is a failure with the goods or services provided.
- (Liability Limitation) To the maximum extent permitted by Law (including the ACL), Child Aware Technology limits all liability in aggregate for Loss of any kind suffered or incurred by the Customer or a Customer Users, however arising whether in contract, tort (including negligence), statute, equity, indemnity or otherwise, arising from or relating in any way to this agreement or any goods or services provided by Child Aware Technology to the amount paid by the Customer to Child Aware Technology in the 3 months preceding the date of the event giving rise to the relevant liability.
- (Contributory Negligence) Child Aware Technology’s liability to the Customer is limited to the extent that the Customer’s Loss was contributed to by the acts or omissions of the Customer or a Customer User. The Customer must take all reasonable steps to minimise or mitigate any Loss in connection with this agreement.
- (Indemnity) To the maximum extent permitted by Law, the Customer indemnifies Child Aware Technology and its employees, contractors and agents in respect of all liability for any claim(s) by any person (including any third party who encounter the services or goods through the Customer’s business) arising from the Customer’s or the Customer’s Personnel’s:
- breach of any term of this agreement; or
- negligent, wilful, fraudulent or criminal act or omission.
- (Consequential loss) To the maximum extent permitted by law, under no circumstances will Child Aware Technology be liable for any incidental, special, exemplary, punitive, indirect or consequential Loss, or damages for loss of data, business or business opportunity, goodwill, anticipated savings, profits or revenue, or Loss that does not arise naturally from a breach, arising under or in connection with this agreement or any goods or services provided by Child Aware Technology (except to the extent this liability cannot be excluded under the Competition and Consumer Act 2010 (Cth)).
14.1 TERMINATION FOR CONVENIENCE
After expiry of the Initial Term, the agreement may be terminated at any time for convenience by either party with the provision of 60 Business Days notice.
14.2 TERMINATION FOR BREACH
Either party may terminate this agreement in whole or in part with immediate effect by written notice if:
- the other party is in material breach of this Agreement and, where such breach is capable of being remedied, has failed to remedy the breach within 30 days of being requested to do so by written notice;
- the other party is in material breach of this Agreement where such breach is not capable of being remedied; or
- the other party becomes subject to any form of insolvency or bankruptcy administration.
14.3 CONSEQUENCES FOR TERMINATION
- Termination or expiry of this agreement does not affect the operation of clauses that are by their nature intended to survive the end of this agreement, including clauses 6.1 (Customer Materials), 9 (Intellectual Property) 10 (Confidential Information) and 13 (Liability) or any rights or remedies already accrued to either party under, or in respect of any breach of, this agreement.
- Upon termination or expiry of this agreement:
- Child Aware Technology will stop providing the Solution and may restrict or suspend the Customer access to the Software;
- subject to clause 14.3(b)(iii), upon termination or expiry of this agreement, each party must promptly return or destroy, and must ensure that its Personnel promptly return or destroy, all Confidential Information of the other party in its possession, custody or control; and
- Child Aware Technology will retain the Customer Materials for 90 days after termination or expiry of this agreement. On the written request of the Customer, Child Aware Technology will make the Customer Materials available for export by the Customer in an industry standard format. After the expiry of that 90 day period, Child Aware Technology will delete the Customer Materials from Child Aware Technology’s systems and it will not be possible to recover it after that.
- If this agreement is terminated:
- by Child Aware Technology for convenience under clause 14.1; or
- by the Customer under clause 14.2 or clause 5.621,
Child Aware Technology will refund the Customer any prepaid Fee covering the remainder of the Initial Term or current Renewal Term, as applicable.
- Subject to clause 15(b), where either party disputes any matter with the other which cannot be agreed, before any legal action is taken:
- the parties must, through their respective chief executive officers (or equivalent officer holders) use reasonable endeavours to seek to resolve the dispute within 21 days of it arising; and
- prior to any other action being taken, the parties will appoint an independent mediator to attempt to facilitate a resolution, and:
- where the parties cannot agree on the mediator within 14 days after the date in clause 15(a)(i) or the nominated mediator does not enter into an engagement agreement within 10 days of a request by the parties or the mediator subsequently ceases to act, either party may request the Law Institute of Victoria to nominate the mediator;
- the parties must promptly enter into an engagement agreement with the mediator on terms reasonably required by the mediator;
- the mediation must be held in Melbourne, Victoria unless otherwise agreed by the parties and the mediator;
- the parties must bear the mediator's fees and disbursements equally and bear their own costs in connection with the mediation; and
- a party may terminate a mediation, by giving written notice to the other party and to the mediator, if the dispute has not been resolved 40 days after the date in clause 15(a)(i).
- Clause 15(a) will not prevent a party from seeking injunctive relief or any other urgent interlocutory relief.
- Any notices required to be sent under this agreement must be sent via email using the party’s email addresses set out in the Parties Details.
- If no email address is stated in this agreement, the notice may be sent to the email address most commonly used by the parties to correspond in relation to this agreement at the time the notice is sent.
- The notice will be considered to be delivered at the time the email is sent, unless the sender has reason to believe the email failed to send or was otherwise not delivered or received.
17 EVENT BEYOND A PARTY’S CONTROL
A party is not liable for delay or failure to perform an obligation to the extent that is due to an event beyond its reasonable control. A party must promptly take reasonable steps to mitigate or avoid the impact of the event.
18.1 GOVERNING LAW AND JURISDICTION
This agreement is governed by the law applying in Victoria. Each party irrevocably submits to the exclusive jurisdiction of the courts of Victoria 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.
This agreement may only be amended in accordance with a written agreement between the parties.
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.
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.
18.5 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.
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.
This agreement may be executed in any number of counterparts. Each counterpart constitutes an original of this agreement and all together constitute one agreement.
Except as otherwise provided in this agreement, each party must pay its own costs and expenses in connection with negotiating, preparing, executing and performing this agreement.
18.9 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.
- (singular and plural) words in the singular includes 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, 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;
- (adverse interpretation) no provision of this agreement will be interpreted adversely to a party because that party was responsible for the preparation of this agreement or that provision; and
- (currency) a reference to $, or “dollar”, is to Australian currency, unless otherwise agreed in writing.
In this agreement, capitalised terms have the meaning given to them in the Key Details, and the following phrases have the meaning set out below.
means, the billing period selected by the Customer when subscribing to the Services, being, as applicable:
|Business Day||means a day (other than a Saturday, Sunday or any other day which is a public holiday) on which banks are ordinarily open for business in Melbourne.|
|Child Aware Technology||means all materials owned or licensed to Child Aware Technology made available under or in connection with this agreement and any Intellectual Property Rights attaching to those material|
|Confidential Information||means information of or provided by a party that is by its nature is 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.|
|Customer Materials||means files Data, which is uploaded or inserted to the Software by a Customer User, or otherwise provided to Child Aware Technology by the Customer.|
|Customer User||means the Personnel, parents or guardians, children or students, members of, or other individuals which the Customer invites to use the Solution or which request to use the Solution and are validated by the Customer.|
|Data||means information, documents, text, images, video, audio and data stored or distributed by any means.|
|Declared Number of Enrolments||means the number, as advised by the Customer during the online sign-up process, of:
|Developed IP||means any materials created or produced by or on behalf of Child Aware Technology in the course of providing the Solution including documentation, reports, data, designs, concepts, know-how, information, advice, opinions, emails, notes whether in draft or final form, in writing, provided orally, either alone or in conjunction with the Customer or others, and any Intellectual Property Rights attaching to those materials|
|Documentation||means all manuals, help files, templates, training materials, policies, checklists, information sheets, forms and other documents supplied by Child Aware Technology to the Customer relating to the Solution, whether in electronic or hardcopy form.|
|Fees||means any and all fees payable by the Customer to Child Aware Technology under this agreement.|
|Intellectual Property Rights||means all present and future rights in relation to copyright, trade marks, designs, patents, trade, business or company names, trade secret, confidential or other proprietary rights, or any rights to registration of such rights whether created before or after the date of this agreement, and whether existing in Australia or otherwise|
|Key Details||means the table set out at the beginning of this agreement titled “Key Details”.|
|Laws||means any applicable statute, regulation, by-law, ordinance or subordinate legislation in force from time to time in the relevant jurisdiction(s) where a party performs its respective obligations under this agreement or the Solution is made or received and includes any industry codes of conduct.|
|Loss||means any loss,damage, claim, expense or liability.|
|Personal Information||means personal information as that term is defined in the Privacy Act 1988 (Cth).|
|Personnel||means, in relation to a party, its representatives, employees, secondees, agents and subcontractors, including employees and contractors of subcontractors.|
|Privacy Laws||means, the Privacy Act 1988 (Cth) and other Laws relating to privacy, data protection, surveillance, direct marketing, data security or the handling of Personal Information.|
|Security Breach||loss, misappropriation or unauthorised access to, or disclosure or use of Customer Materials or other compromise to the security, confidentiality, or integrity of Customer Materials.|
Schedule 1 - SOFTWARE
ChildAware (‘the Software’) is a cloud based software product to assist child related organisations such as schools, early childhood services, sporting and community organisations to comply with their child-safety obligations.
Based upon an Individual User’s role at an Organisation, they may be able to do any of the following things (among other things) on ChildAware:
- access general child safety related information;
- upload information and documentation for the purpose of enabling an Organisation to manage its child safety obligations with respect to staff, parents, volunteers, members and visitors, including uploading Working with Children Checks, police checks and qualifications;
- access policies and procedures relating to child safety;
- access training modules relating to child safety;
- access risk management tools such as safety checklists;
- submit feedback, complaints and other documentation or information in respect to child safety incidents involving Individual Users as a complainant, a person who engaged in the conduct, a person who was the subject of the conduct, or as a witness;
- receive or generate incident reports relating to child safety incidents; and
- generate audit reports to assist the Organisation in monitoring its compliance with its child safety obligations.
Schedule 2 - SUPPORT SERVICES
- Child Aware Technology will use its best endeavours to provide the Support in accordance with the Service Levels in below (Service Levels).
Table 1: Service Levels
Priority Response Target Resolution Target Critical 2 business hours 24 hours High 4 business hours 48 hours Medium 8 business hours 72 hours Low 24 business hours 120 hours
- The severity and priority of calls are classified as follows:
- Critical – business critical issues only, which prevent the majority of users from accessing the Services or where the module functionality is materially restricted with no feasible workaround
High – Solution issues affecting multiple users and issues affecting business operation, which prevents a small group of users from accessing the Services or where the module functionality is restricted but a feasible workaround exists
Medium – notification of image/data capture issues/trends; non-critical general, operation and technical enquiries
- Low – feedback; non-essential system set-up changes, no compliance or cash flow impact.
- If Child Aware Technology is not able to meet a Service Level, for any reason, Child Aware Technology will use reasonable endeavours to respond to or resolve the relevant issue as soon as possible.