AGREEMENT
1
Definitions
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).
Confidential
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
Participant’s authority.
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/).
2
Interpretation
2.1
Reference to:
(a)
the singular includes the plural and vice versa;
and
(b)
“$” or “dollars” refers to New Zealand dollars
and, unless otherwise specified, all amounts payable by a party under this
Agreement are to be paid in New Zealand currency.
2.2
In this Agreement, the meaning of general words
is not limited by specific examples introduced by the words “including”, “for
example” or similar expressions.
3
Use of
the Application and Services
3.1
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.
3.2
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 that:
(a)
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);
(b)
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.
3.3
Without limiting the Company’s other rights and
remedies, if You breach any of the terms of this Agreement the Company may:
(a)
deny You access to the Application (in full or
in part); and/or
(b)
refuse to supply the Services to You (in full or
in part).
4
Information and Data
4.1
You agree to provide Us with all information We
may require to make the Application and Services available to You.
4.2
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.
4.3
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.
5
Services Support
5.1
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.
5.2
The Company will endeavour to respond to any
query within 48 hours of the lodgement of that query.
5.3
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.
5.4
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.
6
Modifications and Upgrades
6.1
We reserve the right to modify the Application
and/or the Services with or without prior notice to You, however 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
Service.
6.2
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.
7
Prohibited Activities
7.1 You
must not use the Application or access the Services in a manner that would:
(a)
violate any law, statute, ordinance or regulation;
or
(b)
encourage, promote, facilitate or instruct
others to engage in illegal activity; or
(c)
promote hate, violence, racial intolerance, or
the exploitation of a crime.
7.2
At our total discretion We may remove and
destroy any Data that We deem breaches clause 7.1
or is otherwise inappropriate.
8
Your Obligations
When using the Application and accessing the Services, You
and each Participant (where applicable) must:
(a)
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
unauthorised person;
(b)
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;
(c)
follow Our reasonable instructions and comply
with any specific terms that We publish on the Application from time to
time;
(d)
only use the Application and access the Services
for legal and legitimate purposes;
(e)
not attempt to access any part of the Application
or Software that is not intended to be accessed by You;
(f)
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 and networks;
(g)
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;
(h)
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
hosted;
(i)
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
(j)
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.
9
Subscription Price and Payment
9.1 Subject
to clause 9.3,
You agree to subscribe for the Subscription at the Subscription Price.
9.2
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.
9.4
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.
9.5 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 unjustified.
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:
(a)
non-use of the Application and/or Services;
(b)
termination of the Agreement by You;
(c)
changes to the Application and/or the Services;
(d)
any loss of Data for any reason whatsoever; or
(e)
Your inability to access the Application and/or
the Services for any reason whatsoever.
10
Intellectual Property
10.1
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
licensors).
10.2
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.
10.3
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
11.1
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.
11.2
You acknowledge that You:
(a)
are authorised to access the information and
Data that You or any Participant inputs into the Application; and
(b)
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).
11.3
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 agree that:
(a)
You are responsible for ensuring that You have
the right to do so;
(b)
You are responsible for authorising any person
who is given access to information or Data;
(c)
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
(d)
the Company has no responsibility if:
(i)
the Company refuses to provide any person access
to Your information or Data in accordance with this Agreement; and/ or
(ii)
the Company makes available information or Data
to any person with Your authorisation.
11.4
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.
11.5
Access to the Application and use of the Services is on an "as is” basis
and at Your and any Participant’s own risk.
11.6
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.
11.7
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.
11.8
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.
11.9
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).
12
Intentionally left blank
13
Limitation of Liability
13.1
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.
13.2
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.
13.3
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 clause.
14
Confidentiality
14.1
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.
14.2
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.
14.3
The provisions of these clauses shall not apply
to any information which:
(a)
is or becomes public knowledge other than by a
breach of this clause;
(b)
is received from a third party who lawfully
acquired it and who is under no obligation restricting its disclosure;
(c)
is in the possession of the receiving party
without restriction in relation to disclosure before the date of receipt from
the disclosing party; or
(d)
is independently developed without access to the
Confidential Information.
15
Privacy
15.1
The Company maintains a privacy policy that sets
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.
15.2
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
Breach
If You:
(a)
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
(b)
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:
(c)
immediately terminate this Agreement;
(d)
suspend for any definite or indefinite period of
time, Your Subscription and use of the Application and access to the Services;
and/or
(e)
suspend or terminate access to all or any Data.
17
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:
(a)
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
(b)
immediately cease to use the Application and
access the Services.
18
Expiry or Termination
This clause and clauses 10, 14
and 15 survive the
termination of this Agreement.
19
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.
The Company shall act reasonably in relation to all dealings
on the above.
20
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.
21
Entire agreement
The terms of this Agreement, together with the Company’s
privacy policy and the terms of any 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.
22
Waiver
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.
23
Delays
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.
24
Assignment
24.1
The Company may assign or transfer any rights to
any other person without the School’s prior written consent.
24.2
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.
25
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.
26
Severability
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.
27
Notices
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.
28
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.