TERMS OF SERVICE
Effective starting: 11 July 2023
This Switch4Schools Customer Agreement (the “Agreement”) is between you and S4S Trading Pty Ltd (ABN 23 665 084 800) trading as Switch4Schools. If you are agreeing to this Agreement not as an individual but on behalf of your company or school, then “Customer” or “you” means your company or your school, and you are binding your company or school to this Agreement. Switch4Schools may modify this Agreement from time to time, subject to the terms in Section 21 (Amendments) below.
By clicking on the “I agree” (or similar button) that is presented to you at the time of your Order, or by making a payment in relation to an invoice or using or accessing Switch4Schools products, you indicate your assent to be bound by this Agreement.
1. SCOPE OF THE AGREEMENT
2.1 Switch4Schools’s Invoice will specify the extent of the licence, subscription start and subscription end and billing requirements.
3. SWITCH4SCHOOLS OBLIGATIONS
3.1. Switch4Schools grants the Customer: a. a non-exclusive, non-transferable, personal limited use right to access and use the Services for the Customer’s internal business operations for which the Customer has paid the fees for the Subscription Period; b. the right to receive support services. 3.2. Switch4Schools will perform its obligations under this Agreement with due care and in a professional timely manner and will seek the Customer’s feedback, and wherever possible make continual improvements to its services.
4. CUSTOMER OBLIGATIONS
4.1. The Customer will promptly provide all decisions and information requested by Switch4Schools in connection with the Services; and 4.2. The Customer will ensure that all information and materials provided to Switch4Schools in connection with this Agreement is accurate and provided promptly or otherwise within the agreed timeframes and; a. is not misleading, deceptive, defamatory, unlawful or objectionable; and b. does not infringe the intellectual property rights of any person or other entity.
5.1. The Customer acknowledges that the content of any report, feedback or other document contains Confidential Information. 5.2. The Customer must ensure that every participant in the Services uses an email address and software that is secured by effective security so that only the participant (and information technology support staff) can access information made available from the Services. 5.3. The Customer must keep confidential all reports, documents and any other information supplied to it pursuant to the Services.
6. FEES AND PAYMENT
6.1. The Customer will pay to Switch4Schools the fees and charges for the Services and the Licence Fee without set-off or deduction within 14 days of the invoice date. 6.2. The Customer may terminate this agreement by giving Switch4Schools not less than one months’ notice in writing prior to each anniversary of the Commencement Date; d. If the Customer terminates this agreement prior to the end of the Subscription Period no refund will be made. 6.3 If the Customer reduces the number of licenses purchased under this Agreement during the term of the agreement, the Customer acknowledges and agrees to surrender any over payment of fees paid in advance for the reduced licenses. The Customer understands that no credit will be provided for the surrendered amount. 6.4. We will automatically invoice the Customer on each periodic renewal until cancellation. If they are on an annual plan, we will send the Customer a notice reminding them that the plan is about to renew within a reasonable period of time prior to the renewal date. 6.5. All amounts payable under this Agreement are exclusive of GST. If GST is payable in relation to a Taxable Supply, the amount payable for that Taxable Supply is the amount for that Taxable Supply specified in this Agreement plus GST. The parties must provide each other with all documentation required to claim any Input Tax Credit, set off, rebate or refund for or in relation to any GST included in any payment made under this Agreement. In this clause 6.6., the terms “GST”, “Taxable Supply” and “Input Tax Credit” have the meaning given in A New Tax System (Goods and Services Tax) Act 1999 and related tax imposition Acts of the Commonwealth of Australia. 6.7. If the Customer fails to pay an overdue amount within 7 days of a notice that the invoice is overdue, Switch4Schools reserves the right to suspend the delivery of the Services or any other obligations under this Agreement until the overdue invoice is paid in full.
7.1. Each agreement articulates the maximum number of active student licences, and permits unlimited teachers to participate in the Switch4Schools program during the subscription period. 7.2. Participants who are added during the Subscription Period will have the same expiry as the enterprise licence. 7.3. The Customer acknowledges and agrees that the Licence Fee payable is based on the then-current Licence Fee for such licences.
8. OPERATIONAL ISSUES
8.1. The Customer must not, unless expressly provided by this Agreement; a. use the Services to provide any facility management or service bureau service, or for the benefit of any third party other than as set out in this agreement; b. copy, adapt, translate, publish, communicate to the public, or create any derivative work or translation of the Services; c. sub-licence, lease, rent, loan, assign, novate or otherwise transfer the Services to any third party; d. disclose the Services to any third party other than any of Customer’s contractors who are bound by obligations of confidentiality which are no less restrictive than those specified in this agreement; e. reverse engineer, reverse compile, de-compile or disassemble the object code of the Services or any part of the Services, or otherwise attempt to derive the source code of the Services, except to the extent permitted by law; 8.2. The Customer must not use the Services for any use or with any Customer Content that: a. infringes any person’s intellectual property rights, right to privacy, right to keep confidential information confidential, right to publicity or induces any person to breach a contract; b. is unlawful (including breaching laws relating to the wrongful distribution of email or other electronic messages “spam”), discriminatory, derogatory, defamatory, slanderous, malicious, obscene, contains child pornography or is immoral; c. contains any virus, Trojan horse or other malicious code, or is used to gain unauthorised access to, does harm to, wrongfully intercepts, expropriates, accesses or uses for any wrongful purpose, any person’s hardware, software, network or data; d. wrongly identifies, or disguises, the sender or place of origin of any communication; e. contains links to any other website that contains information that is of a type described in this clause ((f)); f. in Switch4Schools opinion, exceeds “fair use” by using a disproportionate or inappropriate amount of the infrastructure or resources that are used to operate the Services; g. access, monitor or copy any content of the Services using any robot, spider, scraper or automated process or manual process, or deep link or any part of the Services; h. bypass or circumvent, or attempt to bypass or circumvent any measure that is designed to limit access to any part of the Services, including uncapped that to the extent permitted by law; i. frame, mirror or otherwise include any part of the Services in any other website or application; j. use the Services for the purpose of building a competitive product or service or copying its features or user interface; k. remove, alter or obscure any Switch4Schools trade marks, or any proprietary or restricted use notice on the Services or any material that is downloaded from it; l. allow the Services to become the subject of any charge, lien or other encumbrance; or m. deal in any other manner with any or all of Customer’s rights and obligations under this agreement.
9.1. This Agreement is in effect for as long as you have a valid Licence or Subscription Period, unless sooner terminated as permitted in this Agreement. Either party may terminate the Agreement on 7 days’ written notice to the other party if the other party: a. breaches the terms of the Agreement which breach remains unremedied for more than 21 days; b. becomes insolvent, bankrupt, goes into liquidation, commences winding up proceedings, or has a receiver or a receiver and manager appointed. 9.2. On the termination of this Agreement: a. Switch4Schools is no longer obligated to perform any of the Services 9.3. The Customer will be eligible for a full refund of the Licence Fees if the Customer terminates this Agreement within 14 days from the date the license fees have been paid provided the Services have not commenced. 9.4. The Customer will be eligible for a 50% refund of the Licence Fees if the Customer terminates this Agreement after 14 days but within 30 days from the date the license fees have been paid provided the Services have not commenced. 9.5. The Customer will be not be eligible for a refund of the Licence Fees if the Customer terminates this Agreement after 30 days from the date the license fees have been paid.
10. PRIVACY AND CONFIDENTIALITY
11. INTELLECTUAL PROPERTY
11.1. The Customer owns the Customer Content and all rights (including intellectual property rights), title and interest to Customer Content. The Customer grants Switch4Schools a non-exclusive licence to use Customer Content for the purpose of performing Switch4Schools obligations under this Agreement and any support services. Switch4Schools has no right or obligation to review, edit or modify the Customer Content for any other purpose except as expressly set out in this agreement. 11.2. Switch4Schools or a third party owns all rights (including intellectual property rights), title and interest to the Pre-existing Materials and the Contract Materials. 11.3. Switch4Schools grants the Customer a non-exclusive, non-transferable perpetual licence to use: a. the Pre-Existing Materials to the extent that such materials form part of, or are integral to, the Contract Materials; and b. the Contract Materials for the purposes contemplated by this Agreement. 11.4. The Customer will not copy, reproduce or distribute the Contract Materials or the Pre-Existing Materials without Switch4Schools prior written consent. 11.5. Switch4Schools has no liability for any claim of infringement for a. any use of the Contract Materials by the Customer in any manner inconsistent with this Agreement; or b. the Customer’s use of the Contract Materials in combination with other materials not provided by Switch4Schools.
12. FEEDBACK TO SWITCH4SCHOOLS RELATING TO OUR SERVICES
12.1. The Customer and any Participant who provides feedback to Switch4Schools grants Switch4Schools a worldwide, royalty-free, non-exclusive, perpetual and irrevocable licence to use, copy, modify and otherwise exploit any suggestions, recommendations or other feedback provided by the Customer or its Participants or its other staff relating to the Services provided by us.
13. THIRD PARTY RESOURCES
13.1. The Services may include Third Party Products. The Customer acknowledges that: a. the Customer’s (or Participant, as applicable) use of Third Party Products will be subject to the Third Party Contract(s); and b. the Third Party Contract(s) will be between the Customer (or Participant, as the applicable) and the Third Party Supplier.
14. WARRANTIES AND INDEMNITIES
14.1. The Customer warrants that it is capable of participating in the Switch4Schools program as contemplated under this Agreement. 14.2. Switch4Schools does not represent or warrant that the Services will be secure, confidential, uninterrupted, error-free, accurate, complete or current. The Customer acknowledges that there are risks inherent in internet connectivity that could result in the corruption or loss of the Customer’s privacy, data, Confidential Information and other property. 14.3. Switch4Schools makes no representations or warranties in relation to any Third Party Products. 14.4. To the extent permitted by law, Switch4Schools excludes all conditions, terms, representations and warranties other than those expressly set out in this Agreement. 14.5. To the extent that the provisions of the Competition and Consumer Act 2010 (Cth) (CCA) apply to goods or services supplied under this agreement, then the provisions of this agreement are subject to the provisions of the CCA. 14.6. To the extent that there is a failure to comply with a guarantee under sections 54 to 59 of the CCA in respect of goods which are not goods of a kind that are ordinarily acquired for personal, domestic or household use or consumption, then to the extent permitted by law, the Supplier’s liability is limited to one or more of the following, at the election of the Supplier; a. the replacement of the goods or the supply of equivalent goods; b. the repair of the goods; c. the payment of the cost of replacing the goods or of acquiring equivalent goods; d. the payment of the cost of having the goods repaired. 14.7. To the extent that there is a failure to comply with a guarantee in respect of the supply of services under sections 60 to 62 of the CCA, then to the extent permitted by law, the Supplier’s liability is limited to one or more of the following, at the election of the Supplier: a. supplying the services again; or b. payment of the cost of having the services supplied again. 14.8. If the Australian Consumer Law applies to goods supplied under this agreement, then “Our goods come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and for compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure.” 14.9. The services that are provided under this agreement to remedy any defect in the Services are a “warranty against defects” as defined in regulation 90 of the CCA. These services are provided by Switch4Schools of PO Box 3007 Chermside West Qld 4032, telephone number (07) 3186 9417, email address email@example.com. 14.10. The Customer indemnifies, defends and holds Switch4Schools harmless against all loss, damage, claims, liabilities, costs and expenses (including legal fees) arising from, or in connection with: a. any claim or demand brought by third parties in relation to the Customer Content or the Services; and b. any negligent, wrongful, unlawful or fraudulent act or omission or any breach of this Agreement by the Customer or its officers, employees, contractors, agents or service providers. except to the extent that such loss, damage, claims, liabilities, costs and expenses is caused by Switch4Schools. 14.11. To the extent permitted by law, Switch4Schools excludes liability for: a. Third Party Products; b. loss of data, loss of revenue, loss of profits, loss of opportunities and any indirect or consequential loss or damage; c. any delays in the rollout of the Switch4Schools program caused by the Customer; or d. any Customer Modifications. 14.12. To the extent permitted by law, Switch4Schools total aggregate liability in connection with this Agreement, whether based on warranty, contract, statute, or tort (including negligence) will not exceed two times the Licence Fees paid by the Customer to Switch4Schools in the 12 months preceding the date of the claim.
15.1. Switch4Schools may communicate for marketing and promotional purposes that the Customer has implemented the Switch4Schools program at its school. 15.2. Switch4Schools may use the name and/or logo of the Customer for marketing and promotional purposes.
16. CUSTOMER SUPPORT
16.1. The Customer or Participants may raise technical or delivery issues relating to the Switch4Schools program by email to firstname.lastname@example.org. Issues will be assessed by a Switch4Schools Support Administrator and prioritised as per internal Customer support processes. 16.2. Switch4Schools Customer support hours are between 9:00am and 5:00pm (AEST) Monday to Friday with the exception of Queensland or national public holidays. 16.3. For any disputes or complaints which are unable to be resolved by a Switch4Schools Support Administrator the Customer should contact the Switch4Schools Program Coordinator.
17. FORCE MAJEURE
17.1. In the event that the performance of any obligation under contract by either Switch4Schools or the Customer is prevented due to an event of Force Majeure, neither party will be responsible to the other for failure or delay in performance of its obligations under this Agreement. Each party shall promptly notify the other parties of the occurrence of an event of Force Majeure.
18. GOVERNING LAW AND JURISDICTION
18.1. The laws of Queensland govern this Agreement, and each party unconditionally submits to the exclusive jurisdiction of the courts of Queensland, Australia.
19. ENTIRE AGREEMENT
19.1. This Agreement is the entire agreement in relation to the subject matter between the parties and may not be amended or supplemented other than in writing signed by both parties. 19.2. This Agreement supersedes all prior agreements and understandings between the parties in relation to the subject matter of this Agreement. 19.3. If the Australian Consumer Law applies to this agreement, nothing in this agreement excludes, restricts or modifies a guarantee, right, liability or remedy to the extent that to do so would render a term void or be a breach of the Australian Consumer Law.
20.1. If this Agreement is rendered invalid at any time by any provision contained in it, any such provision will to the necessary extent be excised from the Agreement and the remainder of both the clause and this Agreement will continue.
21.1. Switch4Schools reserves the right to amend any terms and conditions in this Agreement from time to time including any referenced policies and other documents. If a revision meaningfully reduces your rights, we will use reasonable efforts to notify you (by, for example, sending an email to the billing or technical contact you designate in the applicable Order, or in the Product itself). If we modify the Agreement during your Subscription Period, the modified version will be effective upon your next renewal of a Subscription Period, as applicable. In this case, if you object to the updated Agreement, as your exclusive remedy, you may choose not to renew, including cancelling any terms set to auto-renew.
22.1. In this Agreement, the following definitions apply:
Australian Consumer Law means Schedule 2 of the Competition and Consumer Act 2010.
Customer Content means all content and materials the Customer provides Switch4Schools for the provision of the Services.
Confidential Information means: Information or material designated as ‘confidential’ or proprietary to Switch4Schools or the Customer; . Trade secrets of either Switch4Schools or the Customer; Information which the receiving party should reasonably be aware is confidential.
Contract Materials means all software, materials, reports, processes, methods, specifications, documents and other works created by or on behalf of Switch4Schools in connection with the provision of the Services, including all surveys, handouts, learning aids, data, presentations, audio visual productions and materials associated with the Switch4Schools program.
Force Majeure means anything outside the control of a party including acts of nature, war, hostilities, civil disturbances, revolutions, terrorist attacks, or industrial action outside the party’s own workforce.
Licence means the right for a unique school to participate in the Switch4Schools program.
Licence Fee means the fee payable by the Customer for each licence as set out in the Order Form.
Participants mean the teachers, leaders, staff, students or other nominees nominated by the Customer to participate in the Switch4Schools program.
Pre-Existing Materials mean any materials existing at the date of this Agreement, and in the case of Switch4Schools, includes all trademarks, designs, design specifications, software, hardware or other documentation and materials used in Switch4Schools business;
Subscription Commencement Term means the school term specified in the invoice.
Subscription Period means the initial period and any renewal period, as applicable.
Third Party Supplier means the supplier that supplies the Third Party Products (other than Switch4Schools).
We means S4S Trading Pty Ltd trading as Switch4Schools.
You means the Customer.
In this Agreement: 23.1. headings are for convenience only and do not affect the interpretation of this Agreement; 23.2. the singular includes the plural and vice versa; 23.3. a gender includes any other gender; 23.4. a reference to a Clause or Schedule means a clause or schedule of this Agreement; 23.5. a reference to a party in this Agreement includes its agents, successors, licences and permitted assigns; 23.6. a reference to ‘dollars’ or ‘$’, is to Australian currency unless specified otherwise; 23.7. ‘include’ and similar expressions are not words of limitation; 23.8. ‘person’ includes a natural person, body corporate, partnership, joint venture, association or any other legal entity; 23.9. all warranties, representations and undertakings will survive completion of this Agreement; 23.10. defined terms used in this Agreement have the meaning given to them in the Invoice or in the Agreement as the case may be; any notice given under the Australian Consumer Law shall be given in accordance with the provisions of the Australian Consumer Law.