Legal

QUICK TICK FOR TEACHERS

USER AGREEMENT

1. Agreement

(a) The Quick Tick for Teachers mobile/tablet application (“App”), which includes the equivalent website application accessible at quicktickforteachers.com (“Website”), and associated services as provided through the App (“Services”) are provided by Quick Tick For Teachers Pty Ltd ABN 47 689 956 929 (“we” or “us”).

(b) This User Agreement and any additional terms and conditions on the Website in relation to the App and the Services (together the “Agreement”) apply in relation to your use of the App and the Services. Please also note that the Australian Consumer Law may also apply to you if you are in Australia.

(d) We take your privacy seriously. So, your use of the App and our supply of the Services is also governed by our Privacy Policy. Our Privacy Policy sets out how we may collect, store and disclose your personal information.

(e) Please refer carefully to the relevant sections of these Terms before you start to use the App and Services. By accepting this Agreement and/or utilising the App or the Services, you agree that:

(i) this Agreement forms a binding agreement between you and us;

(ii) you consent to the processing, collection and use of your personal data in accordance with the terms of our Privacy Policy; and

(iii) if you are an individual that is acting on behalf of a company or other entity, that you have the authority to enter into this binding agreement on behalf of that company or other entity.

(f) Please note that this Agreement includes provisions which may impact on your rights, and include the following:

(i) Changes to this Agreement – Clause 1(f);

(ii) Risk Disclaimer – Clause 2(d);

(iii) Information required for Membership registration – Clause 3(b);

(iv) Rights you grant us in Your Content – Clause 5(b) and 5(c);

(v) Monitoring of Your Content – Clause 5(e)(iii);

(vi) Termination and Suspension – Clause 9(b);

(vii) Advertising, Updates and Maintenance – Clause 11(b);

(viii) Limitation of Liability and Indemnity – Clause 12; and

(ix) Waiver and Restraint – Clause 13(g).

(g) This Agreement may be amended by us from time to time. We will ensure that any changes to this Agreement are notified to you not less than 30 days prior to taking effect. If you continue to use the App or Services following the date such amended terms take effect as notified to you, you will have automatically accepted the updated Agreement. If you do not agree to this Agreement, or to any update to this Agreement, you must cease using the App and Services in accordance with the terms of this Agreement.

2. Nature of the App and Services and Disclaimer

(a) The App and Services allow users to record student-specific data in the form of anecdotal notes based on observation as required as an education professional, and to utilise the data to track student progress for planning, reporting and assessment purposes (“Purpose”).

(b) Subject to Clause 12(b), the App and Services are provided on an “as-is” and “as-delivered” basis and all warranties of fitness and merchantability are excluded to the maximum extent possible at law. We will use reasonably commercial endeavours to make the App and Services available continuously, however we do not warrant that the App or Services will be constantly available, uninterrupted, secure, or error-free, or that they will be compatible with any technology.

(i) the App and Services have not been prepared to meet your individual needs;

(ii) it is your obligation to ensure the App and Services are suitable for your needs; and

(iii) we may add to, remove, or alter the functionality of App or Services any time in our discretion pursuant to the terms of this Agreement.

(d) You use the App and Services at your own risk. We disclaim any liability in connection with your use of the App and Services to the maximum extent possible at law, except to the extent we will remain liable to you for any liability in connection with your use of the App and Services caused to you as a result of our breach of the terms of this Agreement or our negligence or wilful misconduct.

3. Membership and Access to the App and Services

(a) You may use the App and Services by registering to become a member (“Member”) to become eligible to access and use the App and Services (“Membership”).

(b) To register as a Member and activate your Membership account, you will be required to provide us with personal information such as your name, email address and telephone number, as well as information relating to your occupational status within the education industry, such as details of your current employer and/or place of work, your professional qualifications and your experience. We will handle all personal information we collect in accordance with our Privacy Policy.

(c) If you do not register to become a Member, you may elect to receive communications from us for free by providing us with your contact details. This information will be used by us in accordance with our Privacy Policy.

(d) You must not:

(i) use any false information, including, a false identity to become a Member;

(ii) register to become a Member if we have previously cancelled your Membership or banned you from using any aspect of the App or Services;

(iii) change or attempt to change any other person’s Member information; and/or

(iv) do anything that could jeopardise the security of the App or Services.

(e) You must:

(i) provide accurate and complete information when registering to become a Member (including, without limitation, accurate information in relation to your experience and qualifications);

(ii) update all of your Member details promptly if your information becomes outdated or no longer accurate;

(iii) keep your login and password details confidential; and

(iv) immediately notify us if you become aware of any unauthorised access to or use of your Membership in breach of this Agreement.

(f) You acknowledge that:

(i) you are responsible for all use of your log-in and password details whether authorised or not;

(ii) we may at any time upon provision of as much notice as is reasonably practicable cancel any username, login details or password with respect to your use of the App or Services at any time if we determine acting reasonably and in good faith that such username, login details or password are offensive or infringe on any third party’s rights; and

(iii) we may refuse your application for Membership or cancel your Membership at any time in our absolute discretion if we determine acting reasonably and in good faith that your Membership is presents a tangible and legitimate risk to us or any of our clients including, without limitation if:

(A) your application for Membership is inaccurate, fraudulent or inappropriate;

(B) you engage in any conduct which disparages us or any of our clients.

4. Your Use of the App and Services

(a) Subject to your compliance with this Agreement, we grant you a personal, non-exclusive, non-transferable, non-sub-licenseable, revocable licence to access and use the App and Services for the Purpose for the duration of the Term.

(b) You must not use the App or Services for any purpose other than the Purpose in accordance with this Agreement.

(i) that is illegal, unethical or immoral;

(ii) to mine or collect information or data from the App, users of the App or Services or information in transit to and from the App;

(iii) to bypass any of the App’s features, including any features designed to exclude robots, spiders or scraping applications;

(iv) to manipulate, damage, interfere with or impair the functionality any of the App or any other computer systems or networks (including, without limitation, by way of hacking, uploading of harmful code, using cheats, exploits, automation software, bots or similar software);

(v) we reasonably consider in good faith to be in conflict with the spirit or intent of the App;

(vi) that is in breach of any applicable law or any third party’s rights;

(vii) to disrupt, overburden or assist in such disruption or overburdening of any computer server or network;

(viii) that is likely to harass, abuse, harm, threaten any person or group of persons (including, without limitation, any activity that degrades a person based on their religion, gender, age or sexuality) or incites or is likely to incite any such activity; and/or

(ix) that is misleading or deceptive or is intended to mislead or deceive any person.

(d) Unless the App or the Services specifically permit it, you must not download, reproduce or communicate to any third party any content or materials included in the App or the Services.

(e) As part of your use of the App and Services, you may receive push notifications, email messages, text messages, MMS messages, or other types of messages directly sent to you (“Push Messages”). You may control or discontinue Push Messages in your devices or the App’s settings, or discontinue Push Messages by deleting the App. Some of the Push Messages may be related to your location or to your use of the App and Services. Your carrier may charge standard messaging, data, and other fees for use of Push Messages, and these fees may appear on your mobile bill or be deducted from your pre-paid mobile plan balance (as applicable). Your carrier may prohibit or restrict certain Push Messages and certain Push Messages may be incompatible with your carrier or mobile device. Contact your carrier with questions regarding these issues. We may collect information related to your use of Push Messages in accordance with our Privacy Policy.

5. Your Content

(a) You represent and warrant to us that you own all intellectual property rights in and to any communications, images, sounds or other material and data uploaded by you through the App or the Services (together “Your Content”).

(b) You hereby grant us a non-exclusive, irrevocable, perpetual, royalty and fee free, unlimited licence (including the right to sub-license) to adapt, modify, communicate, exploit (in any manner) and use Your Content (excluding any personal information contained in Your Content, except where permitted under the terms of our Privacy Policy) in connection with the development (including, without limitation, for the purposes of upgrading and/or optimising the App and Services) and provision of the App and the Services, or any of our other business activities.

(c) To the maximum extent permitted by applicable law, you hereby waive your moral rights (if any) in and to Your Content as is reasonably necessary for the operation of the Services. To the extent that applicable law does not permit the waiver of moral rights, you hereby consent to us and our licensees and contractors undertaking all reasonably necessary alterations to Your Content and/or failing to attribute Your Content to you as is reasonably necessary for the operation of the Services.

(d) You warrant and represent that:

(i) you have the right to use Your Content in connection with the App and the Services;

(ii) to the extent that it is relevant, you have obtained appropriate consents and releases from the creator of Your Content (including, if the creator of Your Content is a child, or if Your Content contains information (including, without limitation, personal information) of or pertaining to a child, obtaining consents and releases from the parent or guardian of the child);

(iii) your use and/or our use of Your Content in as contemplated by this Agreement will not:

(A) breach any applicable laws or regulations;

(B) infringe any third party’s Intellectual Property or other rights;

(iv) your Content is accurate and not misleading or deceptive;

(v) your Content is free from viruses or any form of harmful or malicious code;

(vi) you understand that any personal information relating to you or to any other person contained in Your Content will be dealt with in accordance with our Privacy Policy.

(e) You acknowledge that:

(i) you are solely responsible for any of Your Content you upload via the App and the Services;

(ii) we have no obligation to monitor any content posted or distributed by users of the App or the Services;

(iii) if we do monitor user content uploaded via the App or the Services or your communications using the App or the Services:

(A) you hereby irrevocably consent to such monitoring for the purposes of ensuring user compliance with the terms of this Agreement; and

(B) we reserve the right in our sole discretion to delete, edit or refuse to distribute any content to the extent it is non-compliant with the terms of this Agreement; and

(iv) to the maximum extent permitted by applicable law, we have no liability whatsoever to anyone with respect to any content uploaded via the App or Services (including, without limitation, Your Content), except to the extent that we will remain liable to a party for any liability caused to that party as a result of our breach of the terms of this Agreement or our negligence or wilful misconduct.

6. Intellectual Property

(a) All Intellectual Property created in and to the App and arising from or in relation to the Services vests in us or our licensees. Except as set out in this Agreement, you have no rights in or such Intellectual Property. For the purposes of this Agreement, “Intellectual Property” means any and all present and future intellectual and industrial property rights and includes, without limitation, all registered or unregistered forms of copyright (and rights allied to copyright and any reversions and extensions of copyright), designs, patents, trade marks, service marks, domain names, good will and any commercial information (including know how and Confidential Information), any application or right to apply for registration of any of these rights, any rights protected or recognised under any laws throughout the world related to the above or any similar laws, and anything copied or derived from such property or rights.

(b) Other than in respect of Your Content, you acknowledge that you have no right title or interest in or to any aspect of the App or the Services.

7. Fees and Payment

(a) You must pay the published subscription fees for the App and the published fees for the Services via the app portal (“Portal”) through which the App is available in accordance with the terms and conditions of the Portal.

8. Term, Termination and Suspension

(a) The Term commences when you register as a Member and activate your Membership account and concludes on the date of termination as set out in this Clause 8.

(b) We may, in our sole discretion, with immediate effect terminate, suspend, limit or modify your access to the App and the Services with written notice to you if:

(i) you are in material breach of this Agreement, and if that breach is capable of remedy, you have not remedied it within 3 business days of notice requiring that you do so;

(ii) you are in material breach of this Agreement and that breach is incapable of remedy;

(iii) you have engaged in any activity that has had, or that we acting reasonably and in good faith consider is likely to have, a tangible and legitimate adverse impact on any person (including without limitation, any user of the App or the Services), us or our related companies or the App or the Services;

(iv) you have engaged in any activity that infringes, or that we acting reasonably and in good faith consider is likely to pose a tangible and legitimate risk of infringing, any third party’s Intellectual Property or other rights; and/or

(v) you have engaged in any activity that has breached, or that we acting reasonably and in good faith consider is likely to amount to a tangible and legitimate risk of breach of any applicable law, or is otherwise against our legitimate business interests.

(c) You may terminate your access to the App and the Services at any time in accordance with the terms and conditions of the Portal.

(d) If your access to the App and the Services are terminated, you may request us to provide you with a PDF copy of all of the content related to you accessible via the App. We will provide you with such PDF copy subject to any reasonable terms and conditions we may impose.

9. Confidentiality and Disclosures

(a) You acknowledge that:

(i) we have no obligation to keep Your Content confidential or keep, respond, use or compensate you for any of Your Content;

(ii) we may use and exploit Your Content that you share pursuant to the rights in Your Content that you grant us in accordance with the terms of this Agreement; and

(iii) you are solely responsible for all liability arising in relation to any loss or damage incurred by you, other users of the App or Services or any other person in connection with the sharing of Your Content, and to the maximum extent permitted by law, we will not be liable for any such loss or damage, except to the extent that such loss or damage arises as a result of our breach of the terms of this Agreement.

10. Advertising, Updates and Maintenance

(a) You acknowledge that:

(i) the App may contain advertising and links to our products and services and those of third parties;

(ii) you are entirely responsible for any fees or obligations you incur with respect to such third parties;

(iii) we make no warranties or representations in respect of, and do not sponsor or endorse, such third parties or their products and services; and

(iv) third party websites are not under our control and your use of them will be subject to the terms and conditions and privacy policy of the relevant third party.

(b) From time to time, your access to the App and Services may be suspended or restricted in order for work to be carried out relating to the upgrading, optimisation, repair, maintenance of, or introduction of new facilities or services to, the App or Services as we consider is reasonably required for the continued operation and provision of the App and Services. As a result, you may be required by us to accept updates to the App and Services. We will use reasonably commercial endeavours to:

(i) provide you with as much notice as is reasonably practicable of any planned disruptions; and

(ii) ensure that any such works are carried out as expeditiously as is possible in the circumstances.

(c) You acknowledge that if you do not accept any such updates or voluntarily update any applicable third party software to allow such updates to take effect, you may not be able to use the App or Services or enjoy full functionality of the App or Services. We will not be liable to you if for any reason the App or Services are unavailable at any time or for any period for reasons beyond our reasonable control.

11. LIMITATION OF LIABILITY AND INDEMNITY

(a) EXCEPT AS EXPRESSLY SET OUT IN THIS AGREEMENT AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW:

(i) WE MAKE NO REPRESENTATIONS OR WARRANTIES WHATSOEVER TO YOU;

(ii) WE HEREBY EXCLUDE ALL REPRESENTATIONS, WARRANTIES, TERMS AND CONDITIONS WHETHER EXPRESS OR IMPLIED (AND SUBJECT TO CLAUSE 11(b) BELOW, INCLUDING WITHOUT LIMITATION, THOSE IMPLIED BY STATUTE, CUSTOM, LAW OR OTHERWISE);

(iii) OUR CUMULATIVE LIABILITY TO YOU FOR ALL CLAIMS MADE BY YOU UNDER OR IN RELATION TO THIS AGREEMENT, THE PRIVACY POLICY OR YOUR USE OF THE APP OR SERVICES WILL NOT EXCEED IN AGGREGATE THE AMOUNT ACTUALLY RECEIVED BY US IN RESPECT OF YOUR USE OF THE APP OR SERVICES IN THE PERIOD 12 MONTHS PRECEDING THE DATE THE FIRST CLAIM FIRST AROSE;

(iv) NEITHER US OR YOU WILL BE LIABLE TO THE OTHER IN RESPECT OF ANY CLAIM FOR ANY LOSS OF PROFIT, DATA, GOODWILL OR BUSINESS, FOR INTERRUPTION TO BUSINESS, FOR ANY FAILURE TO REALISE ANTICIPATED SAVINGS OR FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL PUNITIVE OR INCIDENTAL DAMAGES.

(b) IF ANY TERM, CONDITION OR WARRANTY IS IMPLIED INTO THIS AGREEMENT BY LAW, OR IF ANY GUARANTEE IN RESPECT OF THE SERVICES OR ANY INFORMATION OR GOODS OR SERVICES ON IT OR ACCESSIBLE THROUGH IT IS CREATED BY THE AUSTRALIAN CONSUMER LAW OR OTHER LEGISLATION, AND THOSE LAWS VOID OR PROHIBIT PROVISIONS IN A CONTRACT EXCLUDING OR MODIFYING THEM, THEN THE TERM, CONDITION OR WARRANTY SHALL BE DEEMED TO BE INCLUDED IN THESE TERMS AND CONDITIONS, OR THE GUARANTEE SHALL APPLY AND SHALL NOT BE EXCLUDED, RESTRICTED OR MODIFIED, PROVIDED THAT, TO THE EXTENT TO WHICH WE ARE ENTITLED TO SO LIMIT OUR LIABILITY, OUR LIABILITY FOR A BREACH OF ANY SUCH TERM, CONDITION OR WARRANTY, OR FOR FAILURE TO COMPLY WITH ANY SUCH GUARANTEE (OTHER THAN A GUARANTEE UNDER SECTIONS 51, 52 OR 53 OF THE AUSTRALIAN CONSUMER LAW), INCLUDING ANY ECONOMIC OR CONSEQUENTIAL LOSS OR DAMAGE WHICH YOU MAY SUSTAIN, WILL BE LIMITED AT OUR OPTION TO:

(i) IN THE CASE OF SUPPLY OF GOODS, EITHER REPLACING THE GOODS OR SUPPLYING EQUIVALENT GOODS OR PAYING THE COST OF REPLACING THE GOODS OR ACQUIRING EQUIVALENT GOODS;

(ii) IN THE CASE OF SUPPLY OF SERVICES, EITHER SUPPLYING THE SERVICES AGAIN, OR PAYING THE COST OF HAVING THE SERVICES PERFORMED AGAIN.

IN JURISDICTIONS OTHER THAN AUSTRALIA, WARRANTIES, GUARANTEES AND CONDITIONS MAY APPLY THAT WE CANNOT LEGALLY EXCLUDE. IF THAT IS TRUE IN YOUR JURISDICTION, THEN TO THE EXTENT PERMITTED BY LAW, WE LIMIT OUR LIABILITY FOR ANY CLAIMS UNDER THOSE WARRANTIES, GUARANTEES OR CONDITIONS TO EITHER SUPPLYING YOU THE SERVICES AGAIN OR PAYING THE COST OF HAVING THE SERVICES SUPPLIED AGAIN.

(c) YOU INDEMNIFY AND MUST KEEP INDEMNIFIED, US, OUR RELATED COMPANIES, THEIR DIRECTORS, OFFICERS AND EMPLOYEES (TOGETHER “THOSE INDEMNIFIED”) AGAINST ANY CLAIMS, LOSSES, LIABILITY, COSTS (INCLUDING LEGAL FEES AND EXPENSES) (TOGETHER “COSTS”) INCURRED BY THOSE INDEMNIFIED ARISING OUT OF OR RELATED TO ANY BREACH BY YOU OF ANY PROVISION OF THIS AGREEMENT, BUT EXCLUDING ANY COSTS ARISING AS A RESULT OF OUR BREACH OF THE TERMS OF THIS AGREEMENT, OUR NEGLIGENCE OR WILFUL MISCONDUCT.

(d) TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER PARTY WILL BE LIABLE FOR ANY DEFAULT, FAILURE OF DELAY RESULTING FROM A FORCE MAJEURE EVENT. FOR THE PURPOSES OF THIS AGREEMENT, “FORCE MAJEURE EVENT” MEANS AN EVENT, OCCURRENCE OR CAUSE BEYOND THE CONTROL OF A PARTY AND WHICH OCCURS WITHOUT THE NEGLIGENCE OF THAT PARTY. SUCH EVENTS, OCCURRENCES OR CAUSES WILL INCLUDE, WITHOUT LIMITATION, ACTS OF GOD, STRIKES, LOCKOUTS, RIOTS, ACTS OF WAR, EARTHQUAKES, FIRE AND EXPLOSIONS.

12. General

(a) We may assign the benefit of this Agreement and Privacy Policy to any person without your consent provided that we give you reasonable notice of such assignment. You may only assign this Agreement and Privacy Policy or a right under them with our prior written consent that may be withheld or granted in our reasonable discretion.

(b) This Agreement and Privacy Policy constitute the entire written agreement between the parties in connection with their subject matter and supersedes all previous agreements or understandings between the parties in connection with its subject matter.

(c) If the whole or any part of a provision of this Agreement and Privacy Policy is invalid or unenforceable in a jurisdiction it must, if possible, be read down for the purposes of that jurisdiction so as to be valid and enforceable. If however, the whole or any part of a provision of this Agreement and Privacy Policy is not capable of being read down, it is severed to the extent of the invalidity or unenforceability without affecting the remaining provisions of this Agreement and Privacy Policy or affecting the validity or enforceability of that provision in any other jurisdiction.

(d) A party does not waive a right, power or remedy if it fails to exercise or delays in exercising the right, power or remedy. A single or partial exercise by a party of a right, power or remedy does not prevent another or further exercise of that or another right, power or remedy. A waiver of a right, power or remedy must be in writing and signed by the party giving the waiver.

(e) This Agreement and Privacy Policy do not create a relationship of employment, trust, agency or partnership between the parties.

(f) The provisions of Clauses 9, 11 and this Clause 12 will survive termination or expiry of this Agreement and Privacy Policy and will continue to bind the parties.

(g) TO THE MAXIMUM EXTENT PERMITTED BY LAW, YOU IRREVOCABLY WAIVE YOUR RIGHT TO SEEK INJUNCTIVE OR OTHER EQUITABLE RELIEF TO RESTRAIN THE OPERATION OF ANY ELEMENT OF THE APP OR SERVICES AND YOU AGREE TO LIMIT YOUR CLAIMS AGAINST US TO CLAIMS FOR MONETARY DAMAGES.

(h) This Agreement and the Privacy Policy will be governed by and construed in accordance with the law for the time being in force in New South Wales, Australia and the parties, are deemed to have submitted to the non-exclusive jurisdiction of the courts of that State.

13. PRIVACY, no details are to be used when creating the account or the data entered in the app that will enable a person to be identified. Use years only for class names and first names only for students.