Application means the Hero product that You have subscribed
for as described in the Schedule (part A).
Business Day means
a day (other than a Saturday or Sunday) on which registered banks are open for
general business in Christchurch, New Zealand.
Business Hours means the period of time commencing at 9am and running until 5pm
each Business Day.
Commencement Date means the date that the Application and Services become available to
You or as set out in the Schedule (whichever is earlier).
Information includes all information exchanged
between the parties to this Agreement, whether in writing, electronically or
orally, but does not include information which is, or becomes, publicly
available other than through unauthorised disclosure by the other party.
Data is any
data entered into the Application by You or a Participant or on Your or a
Fees means the Subscription Price and any additional fee payable by You
for the Services provided under this Agreement at the rates set out in the Schedule
(part A) and as amended pursuant to clause 9.5.
Participant means any person that You give authority to access the Data.
Services means any services related to the Application as provided by the
Company from time to time, including information sharing, information viewing,
back office, support and training services and software.
Software means Our software that supports the Application.
Subscription Period means the period commencing on 1
February each year and running until 31 January the following year.
Subscription Price means the annual price payable by You for the Subscription in each
Subscription Period in the amount set out in the Schedule (part A) and as
amended pursuant to clause 9.5.
Subscription means Your annual subscription of the Application and includes those
Services set out in the Schedule (part B).
Term means an initial period of 12 months from the Commencement Date,
and successive further terms of 12 months each until the Agreement is terminated
by either party giving three months prior notice in writing to the other party,
or otherwise terminated in accordance with this Agreement.
Website means our website (https://www.linc-ed.com/).
the singular includes the plural and vice versa;
“$” or “dollars” refers to Australian dollars
and, unless otherwise specified, all amounts payable by a party under this
Agreement are to be paid in Australian currency.
In this Agreement, the meaning of general words
is not limited by specific examples introduced by the words “including”, “for
example” or similar expressions.
Use of the Application and Services
The Company agrees to provide and grants You,
Your employees, agents, representatives and consultants, and any Participant,
the right to use the Application and access the Services pursuant to Your
Subscription. This right is non-exclusive, non-transferable, and limited by
and subject to the terms of this Agreement.
From the Commencement Date, You, Your employees,
agents, representatives and consultants, and any Participant that uses the
Application and accesses the Services under Your Subscription (whether or not
authorised by You) are bound by the terms of this Agreement. You agree and acknowledge
You are fully responsible for Your acts and
omissions and the acts and omissions of Your employees, agents, representatives
and consultants, and any Participant that uses the Application and access the
Services under Your Subscription (whether or not authorised by You);
You must use reasonable endeavours to ensure
that Your employees, agents, representatives and consultants, and any
Participant that uses the Application and accesses the Services under Your Subscription
comply with the terms of this Agreement; and
Subject to the limitation of Your liability in clause
12, You indemnify Us
against any and all costs (including legal costs), claims, liabilities, losses,
damages and expenses suffered or incurred by the Company as a result of any
claim made against Us by any of Your employees, agents, representatives and
consultants, and any Participant that uses the Application and accesses the
Services under Your Subscription, provided that this indemnity shall not apply
to the extent that such costs, claims, liabilities, losses, damages or expenses
arise as a direct result of any breach of this Agreement by the Company or any
negligence on the part of the Company.
Without limiting the Company’s other rights and
remedies, if You breach any of the terms of this Agreement the Company may:
deny You access to the Application (in full or
in part); and/or
refuse to supply the Services to You (in full or
Information and Data
You agree to provide Us with all information We
may require to make the Application and Services available to You.
Upon termination of the Agreement, the Company
will give You 30 days to extract Your Data from the Application in .csv format
or any other such industry standard format, after which time the Company will
destroy all of Your Data and such information will not be recoverable by You,
unless you have obtained the Company’s prior written agreement to have a
longer period of time to extract Your Data and in which case the Company may
charge at its sole discretion an additional Fee to keep Your Data until you
have extracted it. The Company is not liable for any loss resulting from
deletion of Your Data in accordance with this clause.
The Company complies with best practice policies
and procedures to prevent data loss, but does not make any guarantees that
there will be no loss of Data. Notwithstanding any other clause in this
Agreement, the Company expressly excludes liability for any loss of Data no
matter how caused.
The Company agrees to provide reasonable support
to You in relation to the Application via an inbuilt helpdesk messaging service
and email service during Business Hours. We shall determine whether the extent
or nature of the support requested is reasonable and shall not be required to
provide the support if We do not consider it reasonable.
The Company will endeavour to respond to any
query within 48 hours of the lodgement of that query.
If a query from You requires on-site attendance
by a representative of the Company, a daily call-out fee is chargeable for each
day (or part thereof) that a representative is required onsite. The daily
call-out fee will be determined by the Company from time to time at its sole
discretion, having regard to (among other things) Your location.
Helpdesk support does not extend to leadership
and pedagogical consultation, customisations, enhancements to the application
or rectifying user errors. If a query is of this nature, additional services
may be available to You at Our current hourly rates.
Modifications and Upgrades
We reserve the right to modify the Application
and/or the Services with or without prior notice to You. We will notify You
immediately when We have made any changes. Subject to giving You reasonable
prior notice, We also reserve the right to discontinue the Application or any
The Company may upgrade the Application or any
of the Services. No fees will apply in respect of any minor upgrade. The Company reserves the right to require an additional
payment for any significant upgrade to the Application or any of the Services.
Acceptance of any such upgrades offered will be at Your option.
You must not use the Application or access the Services
in a manner that would:
violate any law, statute, ordinance or
encourage, promote, facilitate or instruct
others to engage in illegal activity; or
promote hate, violence, racial intolerance, or
the exploitation of a crime.
At our total discretion We may remove and
destroy any Data that We deem breaches clause 7.1 or is otherwise inappropriate.
When using the Application and accessing the Services,
You and each Participant (where applicable) must:
only use the Application and access the Services
through Your login and password and keep Your password confidential. You must
change Your password immediately if You believe that it has become known to any
immediately notify Us of any unauthorised use of
Your password or any other security breach and We will reset Your password for
You in the event You are unable to do this;
follow Our reasonable instructions and comply
with any specific terms that We publish on the Application from time to time;
only use the Application and access the Services
for legal and legitimate purposes;
not attempt to access any part of the Application
or Software that is not intended to be accessed by You;
not attempt to undermine the security or
integrity of the Company’s computing systems or networks or, where the Application
and Software is hosted by a third party, that third party's computing systems
not use, or misuse, the Application or Software
in any way which may impair the functionality of the Application or Software,
or impair the ability of any other party to use the Application or Software;
not attempt to gain unauthorised access to any
materials other than those to which You have been given express permission to
access or to the computer system on which the Application or Software is
not transmit, or input into the Application or
the Software, any files that may damage any other party’s computing devices or software,
content that may be offensive, or material or Data in violation of any law
(including Data or other material protected by copyright or trade secrets which
You do not have the right to use); and
not modify, copy, adapt, reproduce, disassemble,
decompile or reverse engineer the Application or the Software except as is
strictly necessary to use either of them for the intended and normal operation.
Subscription Price and Payment
Subject to clause 9.3, You agree to subscribe for the
Subscription at the Subscription Price.
Subject to clause 9.3, the Subscription Price is payable in
advance for each Subscription Period and must be made within 30 days of the
commencement of the relevant Subscription Period. All other Fees are payable
within 30 days of the date of the relevant invoice.
9.3. Notwithstanding any other clause in this Agreement, if the Commencement Date is after 1 February, then the Subscription
Price for the first Subscription Period will be charged on a pro-rata basis
having regard to the number of school terms in which you will receive the
benefit of the Subscription. In this case, the Subscription Price will be
payable in advance within 30 days of the Commencement Date.
The Fees are exclusive of taxes or levies
imposed by tax authorities. You are responsible for payment of all such taxes
or levies imposed on You relating to the Application and/or the Services.
The Subscription Price and any other Fees are
subject to change at our sole discretion including as a result of any increase
in hosting fees We must pay to a third party. We are not liable to You or any
third party for any modification, price change, suspension or discontinuance of
the Application or any Service. You may immediately terminate this Agreement in
the event that You consider, on reasonable grounds any changes to be
9.6. Notwithstanding any other clause in this Agreement, the Company is
not required to provide any refunds or credits of any Fees paid by You
(including the Subscription Price) for:
non-use of the Application and/or Services;
termination of the Agreement by You;
changes to the Application and/or the Services;
any loss of Data for any reason whatsoever; or
Your inability to access the Application and/or
the Services for any reason whatsoever.
Title to, and all intellectual property rights
in, the Application, the Services and any information or documentation relating
to the Application or the Services remain the property of the Company (or its
Title to, and all intellectual property rights
in, the Data (other than non-personally identifying Data and aggregate usage
information) remains with the person(s) who has those rights in that Data,
including any Data that is subject to a Creative Commons copyright licence.
However, Your access and any Participant’s access to the Data is contingent on
full payment of the Subscription Price and all other Fees when due. You grant
the Company, and have obtained authority from each Participant to grant to the
Company, a licence to use, copy, transmit, store, and back-up Your and each
Participant’s information and Data for the purposes of enabling You and each
Participant to use the Application and access the Services and for any related purpose.
You acknowledge that in the event You suggest an
idea or solution that the Company utilises to improve the Application and/or
the Services, then the intellectual property rights in that idea or solution
will vest totally with the Company.
11. Warranties and Acknowledgements
You warrant to Us that You are legally capable
of forming a binding contract and the information provided by You to the
Company is true and correct.
You acknowledge that You:
are authorised to access the information and Data
that You or any Participant inputs into the Application; and
are also authorised to access the processed
information and Data that is made available to You through Your use of the Application
and access to the Services (whether that information and Data is Your own or
that of anyone else).
The Company has no responsibility to any person
other than You and nothing in this Agreement confers, or purports to confer, a
benefit on any person other than You. If You use the Application
or access the Services on behalf of or for the benefit of anyone other than
Yourself (whether a company, body corporate, organisation or otherwise) You
You are responsible for ensuring that You have
the right to do so;
You are responsible for authorising any person
who is given access to information or Data;
the Company has no obligation to provide any
person access to such information or Data without Your authorisation and may
refer any requests for information to You to address; and
subject to the limitation of Your liability in
clause 12, You will indemnify
the Company against any claims or loss relating to:
the Company’s refusal to provide any person
access to Your information or Data in accordance with this Agreement; and
making available information or Data to any
person with Your authorisation.
You acknowledge that the Application and Services
are provided as a tool to facilitate interaction between You, Your pupils and
the pupils’ guardians and school teachers. The Company is an independent party
to the activities conducted when You or a Participant use the Application and Services.
The Company has no responsibility or liability
whatsoever in relation to the activities that You or a Participant undertakes
on the Application or the Services.
Access to the Application and use of the
Services is on an "as is” basis and at Your and any Participant’s own risk.
The Company gives no warranty about the Application
or the Services except as expressly specified in this Agreement. Without
limiting the foregoing, the Company does not warrant that the Application or Services
will meet Your requirements or that it will be suitable for any particular
purpose. To avoid doubt, all implied conditions or warranties are excluded in
so far as is permitted by law, including warranties of merchantability, fitness
for purpose, title and non-infringement.
The Company does not warrant that the use of the
Application and access to the Services will be uninterrupted or error free.
Among other things, the operation and availability of the systems used for using
the Application and accessing the Services, including public telephone
services, computer networks, hosting connections and the internet, can be
unpredictable and may from time to time interfere with or prevent use of the
Application and access to the Services. The Company is not in any way
responsible for any such interference or prevention of Your use of the Application
or access to the Services.
It is Your sole responsibility to determine that
the Application and the Services meet the needs of Your business and are
suitable for the purposes for which they are used.
You remain solely responsible for complying with
all applicable laws in Your use of the Application and access to the Services.
It is Your responsibility to check that storage of and access to Your and each
Participants Data via the Application and the Software will comply with laws
applicable to You and each Participant (including any laws requiring You and
any Participant to retain records).
Without limiting any other clause in this
Agreement (unless expressly stated otherwise), You indemnify the Company to a
maximum amount of 10 times the most recent Subscription Price paid by You in
respect of all costs (including legal costs), claims, liabilities, losses,
damages and expenses suffered or incurred by the Company and any other person
claiming through the Company as a direct or indirect consequence of:
Your breach of any term of this Agreement or any
obligation You may have to the Company, including non-payment of the Subscription
Price or any other the Fees; and
any unlawful, negligent, tortious, criminal,
reckless or dishonest errors, acts or omissions made by You or any Participant
in relation to the Application and/or the Services.
13. Limitation of Liability
To the maximum extent permitted by law, the
Company excludes all liability and responsibility to You, any Participant or
any other person in contract, tort (including negligence), or otherwise, for
any loss (including, loss of any Data or other information) or damage
resulting, directly or indirectly, from any use of, or reliance on, the Application
and/or the Services.
If, despite the other provisions of this
Agreement, We are found to be liable to You then Our liability shall be limited
in respect of any one incident, or series of connected incidents, to the amount
of the Fees actually paid by You in the first 12 months of the Term(the Capped
Amount). Notwithstanding any other provision of this Agreement, in no event
shall Our liability to You exceed the Capped Amount, and We shall never be
liable to you for any loss of profits, consequential or indirect loss.
If You are not satisfied with the Application or
any Service, Your remedies are to terminate this Agreement by giving three months
prior notice in writing to the Company, but the Company is not required to
provide any refunds or credits of any Fees paid by You (including the
Subscription Price) pursuant to clause 9.6 except as set out in this clause. You
may require the Company to reimburse to You the Subscription Price paid by You
to the Company if there is a material defect in the Application and/or the
Services caused by the Company and You advise the Company of such defect within
3 months of the Commencement Date. This Agreement shall automatically terminate
in the event of any reimbursement of the Subscription Price pursuant to this
Unless the relevant party has the prior written
consent of the other or unless required to do so by law, each party will
preserve the confidentiality of all Confidential Information of the other
obtained in connection with this Agreement.
Neither party will, without the prior written
consent of the other, disclose or make any Confidential Information or Data
available to any person, or use the same for its own benefit, other than as
contemplated by this Agreement.
The provisions of these clauses shall not apply
to any information which:
is or becomes public knowledge
other than by a breach of this clause;
is received from a third party who lawfully
acquired it and who is under no obligation restricting its disclosure;
is in the possession of the receiving party
without restriction in relation to disclosure before the date of receipt from
the disclosing party; or
is independently developed without access to the
out how We collect, use and protect Your personal information, as well as Your
rights in respect of this information. A copy of the current policy is
available on the Website. The Company reserves the right to change its privacy
policy at any time by posting changes on the Website. You will be taken to have
accepted that policy and any amendments to it by entering into this Agreement.
You consent to receiving regular electronic
newsletters and any other promotional material sent to Your e-mail address
and/or posted within the School’s home page of the Application, that the
Company may wish to send to You from time to time.
16. Third Party Integrations
16.1. The Company may at its sole discretion allow third parties to
develop applications that interact with the Company’s Application (the Third
Party Applications). If You wish to use the Third Party Applications, you
give your consent to the Company providing Your Data to the third party.
You acknowledge that:
the use of the term “Application” in this Agreement is not to be read or construed as if it is a
reference to any Third Party Applications;
the Company shall not be
a party to the terms of service that you have with any third party and the
Company has no responsibility or liability whatsoever in relation to the Third
Party Applications; and
any Data that is provided to a third party
pursuant to clause 16.1 shall
breach any term of this Agreement (including by
non-payment of the Subscription Price or any other Fee) and do not remedy the
breach within 14 days after receiving notice of the breach if the breach is
capable of being remedied; or
breach any term of this Agreement and the breach
is not capable of being remedied (which includes where the Subscription Price
or any other Fee is more than 30 days overdue),
the Company may:
immediately terminate this Agreement;
suspend for any definite or indefinite period of
time, Your Subscription and use of the Application and access to the Services;
suspend or terminate access to all or any Data.
18. Accrued Rights
Termination of this Agreement is without
prejudice to any rights and obligations of the parties accrued up to and
including the date of termination. On termination of this Agreement You and
each Participant will:
remain liable for any accrued charges and
amounts which become due for payment before or after termination including the
Subscription Price and any other Fees; and
immediately cease to use the Application and
access the Services.
19. Expiry or Termination
This clause and
clauses 10, 14 and 15 survive the termination of this
20. Amendment of terms
The Company reserves
the right to amend the terms of this Agreement at any time, effective upon the
posting of the modified terms on its Website and/or the Application. The
Company will make every effort to communicate these changes to You to Your
email or notification via the Application. You are obligated to communicate
any amendments to the Participants. The preceding provisions of this clause are
subject to You first confirming Your approval of such amendments to the terms
of this Agreement (such approval not to be unreasonably withheld), and the
Company has the right to immediately terminate this Agreement in the event that
approval is not given by You under this clause.
21. Service availability
Whilst the Company
aims for the Application and the Services to be available during the times
specified in this Agreement, it is possible that on occasions the Application
or Services may be unavailable for any reason including to permit maintenance
or other development activity to take place. If for any reason the Company has
to interrupt Your use of the Application and/or access to the Services on a
planned basis for longer periods than the Company would normally expect, the
Company will use reasonable endeavours to publish in advance details of such
activity on the Application.
22. Entire agreement
The terms of this
other notices or instructions given to You, supersede and extinguish all prior
agreements, representations (whether oral or written), and understandings and
constitute the entire agreement between You and the Company relating to the Subscription
and the other matters dealt with in this Agreement.
If either party waives
any breach of this Agreement, this will not constitute a waiver of any other
breach. No waiver will be effective unless made in writing.
Neither party will
be liable for any delay or failure in performance of its obligations under this
Agreement if the delay or failure is due to any cause outside its reasonable
control. This clause does not apply to any obligation to pay money.
The Company may assign or transfer any rights to
any other person without the School’s prior written consent.
You may not assign or transfer any rights to any
other person without the Company’s prior written consent. The Company is not
obligated to provide any reasoning for withholding consent.
26. Governing law and jurisdiction
You accept that New
Zealand law governs this Agreement and You submit to the exclusive jurisdiction
of the courts of New Zealand for all disputes arising out of or in connection
with this Agreement.
If any part or
provision of this Agreement is invalid, unenforceable or in conflict with the
law, that part or provision is replaced with a provision which, as far as
possible, accomplishes the original purpose of that part or provision. The
remainder of this Agreement will be binding on the parties.
Any notice given
under this Agreement by either party to the other must be in writing by email
and will be deemed to have been given on transmission. Notices to the Company
must be sent to [email protected] or to any other email address notified by
email to You by the Company. Notices to You will be sent to the email address
which You provided at the time of subscribing for the Application.
29. Rights of Third Parties
A person who is not
a party to this Agreement has no right to benefit under or to enforce any term
of this Agreement.