Service Agreement - Terms and Conditions
Definitions“Additional Services” means web-based services that are not included in our normal web hosting, app and server maintenance services. “Agent of the User” means a person who acts on behalf of another, namely, someone who acts on behalf of the User of the Service with consent of the User and subsequently uses the Service or the Service Provider. “Intellectual Property” means all patents, trademarks, business names, copyright, design, logos, slogans, memberships, software and other products created, trade secrets, records and data in whatever form and however described used in or associated with Kudos Technology PTY LTD, specifications, drawings, notes, characteristics and processes of Kudos Technology PTY LTD whether existing at the date of this Agreement or brought into existence subsequent to this Agreement. “Kudos Technology PTY LTD” means Kudos Technology PTY LTD ABN 76 633 158 040 of Castle Hill, in the state of New South Wales, Australia, trading as THEEDU. “Laws” means all laws including rules of common law, principles of equity, statutes, regulations, proclamations, ordinances, by – laws, rules, regulatory principles and requirements, mandatory codes of conduct, writs, orders, injunctions, judgments, determinations and statutory licence conditions. “Plan” means the licensing and support plan described in the quotation that is selected in accordance with Clause 8. “Professional Rates” means the Service Provider (Kudos Technology PTY LTD)’s fees for performing web-based services as set out in the Users quotation or as otherwise advised at the time for request of Additional Services. “Service” means TheEDU solution (theedu.com.au) offered by the Service Provider (Kudos Technology PTY LTD) that the User and/or Agent of the Users, use. “Service Provider” means the organisation, Kudos Technology PTY LTD, which provides and maintain the Service that the User and/or Agent of the User uses. “User(s)” means a person and/or Agent of the User who uses the Service with the Users knowledge, authorisation or permission. 1. Agreement
1.1 These Terms and Conditions are the terms on which the Service is provided. 1.2 The terms apply to all Users and/or Agents of User of the service. 1.3 It is a condition for use of the service that:
a. These Terms and Conditions are complied with by every User and/or Agent of the User;
b. Every User is made aware of these Terms and Conditions;
c. Every User provides any Agent of the User a copy of the Terms and Conditions;
d. Every User ensures other Users and/or Agents of the User comply with these Terms and Conditions. 2. Changes to these Terms and Conditions
2.1 These Terms and Conditions are subject to change from time to time. 2.2 Kudos Technology PTY LTD will provide reasonable notice if changes to these Terms and Conditions occur. 2.3 In accordance with Clauses 2.1 and 2.2 above, once the requisite notice has provided, the User and/or Agent of the User are bound by the amended Terms and Conditions. 2.4 If any User and/or Agent of the User of the Service does not agree or comply with the amended Terms and Conditions, the User and/or Agent of the User is to cease using the Service immediately thereafter and must notify the Service Provider within 14 days, in writing, for ceasing to use the Service due to changed Terms and Conditions. 3. Duration
3.1 These Terms and Conditions commence on the date on which the User joins the coaching school, centre or teacher who subscribed to the Service; or 3.2 By the User signing in to their account to access the Service for the first time. 3.3 This Agreement continues until either party terminates by 14 days written notice to the other party. 3.4 On termination or expiry of this Agreement for any reason:
a. Service Provider will no longer obliged to provide the Service to the User and/or Agent of the User;
b. The User and/or Agent of the User must not attempt to use or access the Service immediately after the date of termination;
c. Each party’s rights and obligations accrued prior to termination are not affected;
d. The Service Provider may delete all of the User and/or Agent of the Users data contained on any storage media;
e. Clauses in relation to liability and indemnity continue; and
f. The Service Provider is released and is indemnified from any claim, suit or action that may arise from any person in relation to this Agreement. If the Service Provider terminate the Service for any reason, then this Agreement will terminate automatically. In that case, unless the Service Provider terminated this Agreement due to failure by the User and/or Agent of the User to comply with these Terms and Conditions, the User and/or Agent of the User will be entitled to a pro-rata refund of any pre-paid fees, if any, within 14 days of termination. 4. Maintenance
4.1 In order to keep its servers up to date, the Service Provider will perform scheduled maintenance to servers from time to time. 4.2 The Service Provider reserve the right to suspend access to the Service during the time required for the scheduled maintenance. 4.3 In case where the hardware and/or IT infrastructure used by the Service Provider encountered failures, the Service Provider reserve the right to suspend access to the Service during the time the underlying hardware and/or IT infrastructure service is being restored by hardware and/or IT infrastructure provider. 5. Uploading Client Data
5.1 Except for Intellectual Property rights in the Client Data, the Service Provider and Kudos Technology PTY LTD will own all Intellectual Property rights created during the course of providing the Service. 5.2 Subject to Clause 5.3 and the Acceptable Use Policy the User and/or Agent of the User may upload content that the User and/or Agent of the User wishes to use on the Service’s website and/or mobile app, in the manner and form and at all times directed by the Service Provider from time to time. 5.3 The User and/or Agent of the User must ensure that all Client Data:
a. Complies with any content standards set by the Service Provider;
b. Complies with the Acceptable Use Policy;
c. Complies with all Laws Governing New South Wales and Australia;
d. Does not infringe the Intellectual Property rights of any person.
5.4 The Service Provider reserves its right to remove any Client Data it considers unsuitable.
5.5 The User and/or Agent of the User indemnifies the Service Provider against any claim, suit or action by any person who alleges that their Intellectual Property rights have been infringed by information on the Service. 6. Data Backup
6.1 The service provider will perform a daily backup of the system database, and the data within the system database will be backed up to the service provider's cloud-based online storage, once a day. The Service Provider advises that in the event of equipment failure or data corruption, content since the last backup was taken, may be lost during the data restoration process. 6.2 The User and/or Agent of the user acknowledge that the Service Provider shall not be held liable for any loss of data, and the User and/or Agent of the User irrevocably indemnify the Service Provider against any claims, suits or actions brought by any person for loss or damage resulting from loss of data stored on the Service. 7. Sub-domains and Account Rights
7.1 All sub-domains associated with Kudos Technology PTY LTD domain names (and all sub-domains of these domains) will remain the property of Kudos Technology PTY LTD. 7.2 The domain names (and all sub-domains of those domains) of the Service are provided at the Service Provider’s discretion. 7.3 The Service Provider make no guarantee that:
a. The User and/or Agent of the User will be provided with a sub-domain by Kudos Technology PTY LTD;
b. Any particular sub-domain name is or will continue to be available for the User; or
c. No domain name is or will be registered which conflicts with the Users preferred domain name or otherwise affects use of the Users domain name. 7.4 If any dispute arises in relation to a sub-domain name provided by Kudos Technology PTY LTD, then Kudos Technology PTY LTD may withhold, suspend or cancel the sub-domain name. 8. Service Plan
8.1 At the time that the User signs up for the service, the User must select a service plan from those offered to the Users. 8.2 The User acknowledges that each plan comes at a different cost and offers a different level of service. 9. No Resale
9.1 The User and/or Agent of the User acknowledge that they must not resell the Services without written express permission from the Service Provider and/or Kudos Technology PTY LTD. 9.2 The User and/or Agent of the User acknowledge that reselling of the services without the written permission referred to in Clause 11.1 will bring the User and/or Agent of the User into breach of this agreement and subsequently, Kudos Technology PTY LTD reserve their right to suspend or terminate the Users account effective immediately. 10. Access to Account
10.1 The User and/or Agent of the Users has access to the Service via web and/or mobile app. 10.2 The Service does not include access to the the Service Provider’s hosting account. 10.3 The User can obtain access to their account through the username and password assigned. 10.4 It is the User and/or Agent of the Users responsibility to maintain the confidentiality of their username, password and other account information. 11. Technical Support and other Additional Services
11.1 The fees include the provision, updates and maintenance of the Service. 11.2 At the request of the User, the Service Provider may carry out Additional Services for the User, including but not limited to technical support for application specific issues, and/or additional functions to be added to the Service; 11.3 The User and/or Agent of the User must pay for all Additional Services that they requested at the Service Provider’s Professional Rates. 12. Suspension and Termination of Account
12.1 The Service Provider may monitor any Users account to determine whether all Users and/or Agents of the User are complying with this agreement. 12.2 The Service Provider reserve the right to suspend or terminate any Users account with immediate effect and without notice if:
a. The User and/or Agent of the Users use of the Service is found to be in breach of any law;
b. The User and/or Agent of the User has committed a breach of this agreement;
c. The User and/or Agent of the Users use of the Service may compromise or have an adverse effect on our systems or networks, or the Service Provider’s system or networks; or
d. The User fails to meet any payment requirements under these Terms and Conditions or as otherwise agreed with the Service Provider. 13. Payment – Invoicing
13.1 Billing is implemented from the commencement of this agreement as arranged between the parties. 13.2 Billing period is subject to changes depending on the arrangement of the User and/or Agent of User, with the Service Provider. 13.3 The User must pay all Service charges, minimum charges and other amounts incurred by the User and/or Agent of the User or incurred as a result of any use of the Users password (whether authorised or not) in accordance with the billing option selected. 13.4 The User will be invoiced at the time payment is due. 13.5 In accordance with Clause 13.1,13.2 and 13.3, the User and/or Agent of the User must pay as indicated on the invoice by Kudos Technology PTY LTD or within 14 days from the date of the invoice, whichever is earlier. 13.6 Kudos Technology PTY LTD reserves the right to immediately suspend or terminate the Service if payment is not received on time pursuant to Clause 13.4. 14. Disbursements
14.1 The User and/or Agent of the User is liable to pay the following disbursements:
a. Any applicable setup fee that is advised at the commencement of the agreement;
b. Any applicable fees for any Additional Services that are requested for Kudos Technology PTY LTD to perform, including but not limited to: support, customisation, hosting etc.
c. Licence and support fees are charged in advance.
d. All fees for Additional Services are charged at the end of the month for the previous month, unless other arrangements are made in writing with Kudos Technology PTY LTD.
e. At the time of purchase, the User will pay the setup fee (if applicable) and prepay a recurring amount for the selected period. Charges for Additional Services will be billed retrospectively for the previous month.
15. Changes to Fees
15.1 Kudos Technology PTY LTD’s current Service Fees are set out in the Users original quotation and apply for the duration of the billing period. 15.2 Kudos Technology PTY LTD reserves the right to adjust their Service Fees. 15.3 If Service fees has changed, Kudos Technology PTY LTD will provide the User with reasonable notice of the changed Service Fees through Kudos Technology PTY LTD website, by email or otherwise. 15.4 The change of Service Fees will be applicable from the date on which the Users pre-paid billing period expire. 16. GST
16.1 Unless Kudos Technology PTY LTD stated otherwise, all fees and charges are exclusive of GST. 17. Limitation of Service
17.1 The User and/or Agent of the User acknowledge that, due to the inherent risks of the internet, and of computer-based networks and systems:
a. The Services provided under this Agreement may be subject to interruptions or system errors from time to time;
b. The Services may not meet the User and/or Agent of the Users requirements; and
c. The User and/or Agent of the Users data may not be secure or protected from loss or corruption, and data loss or corruption may occur due to delays, Service interruptions or other reasons.
17.2 The User and/or Agent of the User agrees that interruptions and/or any event referred to in Clause 17.1 shall not amount to a breach of these terms and that the events referred to in Clause 17.1 are expected. 18. Indemnity
18.1 The User and/or Agent of the User agrees to indemnify and hold harmless the Service Provider and its employees, contractors and agents of the Service Provider (“Indemnified Party”) against any losses, claims, damages, liabilities, penalties, actions, proceedings or judgments (collectively, ”Losses”) to which an Indemnified Party may become subject and which Losses arise out of, or relate to this Agreement or Customer’s use of the Service and Products, and will reimburse each Indemnified Party for all legal and other expenses, including reasonable Solicitors’ fees incurred by such Indemnified Party in connection with investigating, defending or settling any Loss whether or not in connection with pending or threatened litigation in which such Indemnified Party is a party. 19. Governing Law
19.1 This Agreement and the transactions contemplated by this Agreement are governed by the law of New South Wales in the Commonwealth of Australia, and the parties submit to the Courts of those jurisdictions. 20. Advertising
20.1 For all intents and purposes, the Service Provider reserve the rights to run advertisement on the Service. 21. General
21.1 Any notice given under this Agreement must be in writing, addressed to the other party’s contact persons as notified by the other party. 21.2 This Agreement does not create a relationship of employment, agency or partnership between the parties. 21.3 The Service Provider may subcontract their obligations under this Agreement. 21.4 The failure of a party at any time to insist on performance by the other party of an obligation under this Agreement is not a waiver of any of its rights. 21.5 If part or all of any of the provisions of this Agreement is illegal or unenforceable, it will be severed from this Agreement and will not affect the continued operation of the remaining provisions. 21.6 The User and/or Agent of the User accept that:
a. The Service Provider exercise no supervision or control whatsoever over the content of the information passing through the Service Provider’s network;
b. The Service Provider accept no responsibility for the consequences of unauthorised breach of the Service Provider’s system security including but not limited to hacking or denial of service attacks. 21.7 The User is responsible for the use of the Users account, whether that use is by them or an Agent of the User. 21.8 If the User and/or Agent of the User permits others to use the Service, the User and/or Agent of the User is responsible for making that User aware of this policy and ensuring their compliance with this policy. 21.9 The User and/or Agent of the User agrees as an essential term of this agreement to act in good faith and honestly and in furtherance of the commercial efficacy intended by these Terms and Conditions. 21.10 The invalidity or unenforceability of any provision shall not affect any other part of these Terms and Conditions. 21.11 The relevant parties acknowledge that the Contra-proferentem rule is abrogated in this Agreement in its entirety.
Kudos Technology PTY LTD
ABN: 76 633 158 040