Legal

This document is to be read in conjunction with the details of your Subscription. Together with the Subscription the terms and conditions set out in this document apply to the provision of the Products and Services by JABRWorks Pty Ltd (Agreement).
By installing, accessing or using the Products, Services or any of the content made available via the Products or Services, the Customer agrees to comply with the obligations set out in this Agreement.

1.    Definitions

Business Day means any day except a Saturday, Sunday, public holiday or bank holiday in South Australia.

Commencement Date means the date the Products or Services are to commence as set out in the Subscription.
 

Customer, “you” and “your” refer to you, the purchaser of the Products or Services identified in the Subscription.
 

Customer Data means data of any kind in whatever form (including text images, audio and video) contributed, linked to, or otherwise made available, through the Product or Service by or from a User.
 

Fees means the fees payable for the Products or Services as set out in your Subscription.
 

Initial Subscription means the initial subscription term set out in your Subscription.
 

Intellectual Property Rights means:

a.    any patent, trade mark (whether registered and whether within or outside Australia), copyright, design or other design right (whether registered or unregistered) and any corresponding property or right under the laws of Australia or any other jurisdiction in the world (including any applications for registration of the foregoing rights);
b.    any right under the laws of Australia or any other jurisdiction in the world to apply for the grant or registration of a patent, trademark, copyright, design, or any corresponding property right; and
c.    any rights and the benefit of any obligation owed in respect of an invention, discovery, trade secret, know-how, concept, data, database, information, process, methodology, formula or confidential information.
 

Personal Information has the meaning given in the Privacy Act 1988 (Cth).

Products means any resources or packages developed that are not described in services (below).

Services means the provision of access to EdQuest’s interactive e-learning tools, curriculum and the provision of EdQuest’s Professional Learning webinars and courses.
 

EdQuest, “we”, “us”, or “our” refers to the EdQuest software and services delivered by JABRWorks Pty Ltd.
 

EdQuest IPR means all Intellectual Property Rights subsisting in the EdQuest Platform, any EdQuest website and EdQuest Professional Learning and includes without limitation all Intellectual Property Rights (including software source code and any information, exclusive of any Customer Data or User Content.
 

EdQuest Platform means our online, interactive program.
 

EdQuest Professional Learning means our webinars and courses for teachers.
 

EdQuest Toolset means the elements and functionality used to deliver the Services including, without limitation: websites, graphics, layout, text, images, audio and/or video, designs, logos, domain names, trade names and marks, software, source code, “look and feel”, and, the manner in which these elements are arranged.
 

Subscription means the details of your purchase of the Product or Service.
 

Term means the term of the Products and Services as set out in the Subscription.
 

User means a teacher engaged by your training or educational organisation, a student or other person authorised to use the Products or Services.
 

User Account means a user name and logon for a User to access the Service.
 

User Content means content produced by or on your behalf as set out in clause 5(d).

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2.    Terms
EdQuest reserves the right to vary any of the Terms, or any other policy or guideline, at any time and in its sole discretion and without notice to the Customer. Unless otherwise specified in writing by EdQuest, any changes or modifications to the Terms will be effective immediately upon publication on the EdQuest website.

3. Licence and Access
3.1 Licence
Subject to the Customer paying the Fee for Services, EdQuest will provide access to the Services to the Customer and its Users. During the Term, EdQuest grants to the Customer a non-exclusive, non-transferable, and revocable licence (Licence) to access and use the Services for the purposes of preparing and delivering training and education activities, developing User Content and sharing Customer Data and User Content in accordance with the Subscription. All rights not expressly granted to you are reserved by us.

3.2 Access and Security
The Customer must not disclose any user name or password details to any other person or store it in a manner that would reasonably allow another person or entity to obtain access to it.

3.3 Provision of information
The Customer must supply EdQuest with complete, accurate and up to date information when taking out a Subscription and this information must be updated by the Customer as required to ensure it remains accurate.

3.4 Limited use
Unless EdQuest agrees otherwise in writing, the Customer is provided with access to the Services only for its educational or internal business use and otherwise in accordance with the Licence granted in clause 3.1. The Customer must not and it must ensure that the Users do not, use the Services for any other purpose without the prior written consent of EdQuest.

3.5 Ongoing development
You acknowledge that we regularly update the Service, releasing new features or improving existing ones. We will consult with you if we reasonably believe such changes could adversely affect your use of the EdQuest Platform or your use of the Services.

3.6 Expiry or termination
Upon expiry or termination of the Customer’s Subscription, the Licence will be revoked and, from that date, the Customer must immediately cease and must ensure the Users cease accessing and otherwise using the online Services.

 

4.    Acceptance, prices and cancellation
EdQuest’s list prices and other terms shown are subject to change without notice. EdQuest may make changes, notified by written or electronic notice at any time. 

 

5. Payment and Invoicing
5.1 Payment of Fees

a.    The Customer must pay EdQuest the Fees and any other amounts payable under the Agreement in the manner and on the dates specified in the Subscription. Unless otherwise agreed by the parties in writing, Fees are payable annually in advance of the Products or Services.
b.    Invoices issued under clause 12.1(c) are due within [30] days of the date of invoice.
c.    Timely payment of each invoice is an essential term of this Agreement.
d.    Where applicable, the Customer must pay, in addition to the Fees, any GST levied or imposed upon EdQuest as a result of the provision of the Products or Services. Unless otherwise expressly stated, all prices or other sums payable or fees to be provided under or in accordance with this Agreement are exclusive of GST.
e.    Unless the Customer has agreed a multi-year Subscription which fixes Fees for that Initial Subscription term, EdQuest may increase Fees at renewal under clause 17.1. EdQuest will notify the Customer of any applicable Fee increase in advance of the renewal Term commencing.

5.2 Overdue amounts

If any amount payable to EdQuest under this Agreement has not been paid by the Customer by the due date for payment, EdQuest may:

a.    charge interest on the amount outstanding at the rate of 4% above the overdraft index rate charged by the Commonwealth Bank (or such other bank as EdQuest may nominate) from time to time calculated per annum from the due date for payment until such time as full payment of the outstanding amount is made by the Customer (which interest must be paid by the Customer on demand by EdQuest);
b.    suspend performance of this Subscription (in part or in full) until the amount outstanding is paid in full; or
c.    terminate the Subscription.

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5.3 Additional rights
The exercise by EdQuest of any of its rights under clause 5.2 does not affect:

a.    the Customer’s obligation to pay any money due and payable; or
b.    any other rights or remedies EdQuest may have in relation to any failure by the Customer to pay an amount due,
under this Subscription or any other agreement between EdQuest and the Customer.
 

6.    Availability, Outages and Interruptions

a.    We make every effort to ensure the Service is available 24 hours a day, 7 days a week. EdQuest may undertake maintenance activities which are in its reasonable opinion necessary to properly provide, or to facilitate improvements to, or maintenance of, the Services.
b.    EdQuest will use reasonable endeavours to minimise the need for maintenance work (Scheduled Maintenance) that may cause disruption to EdQuest’s ability to provide the Services to the Customer. EdQuest will use reasonable endeavours to minimise any disruption to the Customer caused by the Scheduled Maintenance and where reasonably able to do so will provide details of the nature of the Scheduled Maintenance.
c.    Notwithstanding this clause 4 or otherwise, EdQuest reserves the right to undertake emergency maintenance in respect of the EdQuest Platform or otherwise without notification to the Customer. Where reasonably able to do so, EdQuest will notify the Customer prior to undertaking such emergency maintenance.
d.    EdQuest reserves the right to monitor access and use of the Service from time to time including to ensure compliance with the Agreement and to comply with any usage restrictions.

7.    Modification, Discontinuation or recall
JABRWorks may update, enhance and/or expand the content, features and functionality of a Product and/or change the name and branding of a Product from time to time. In the event a Product is discontinued by JABRWorks or is the subject of a recall by JABRWorks during the term of JABRWorks’ contract with the Customer, JABRWorks will be responsible only for, at JABRWorks’ election:

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(a) supplying the Customer with a revised or corrected versions of the Product;
(b) substituting the Product with a new product in the same subject area and the same type, quality, condition and price or (b) providing a pro-rated credit to Customer that may be applied toward the purchase of other JABRWorks Products in the amount of the costs paid by Customer to JABRWorks for the use of such Product during the remaining term of JABRWorks’ contract.

8.    Intellectual Property Rights

a.    The Customer acknowledges and agrees that EdQuest owns and holds the EdQuest IPR and at no time during the term of this Agreement or after its expiry or termination, will the EdQuest IPR transfer, assign or otherwise vest in the Customer.
b.    During the Term of this Agreement and at any time after the Agreement expires or is terminated:

i.    the Customer must not use challenge, interfere with or otherwise impede EdQuest’s ownership and use of the EdQuest IPR;
ii.    the Customer must not use or attempt to use, license or attempt to license or otherwise deal with, transfer, assign, or grant a licence in relation to, the EdQuest IPR;
iii.    the Customer must not engage in the infringement of the EdQuest IPR by hacking, reverse engineering or otherwise duplicating the EdQuest IPR;
iv.    with the exception of content development activities allowable as part of the Service, the Customer must not otherwise modify or make derivative works based upon the Service or the EdQuest Toolset;
v.    the Customer must not “frame” or “mirror” any EdQuest Toolset on any other server or wireless or Internet-based device; and

c.    Subject to clause 8(e), EdQuest acknowledges and agrees that the Customer owns and holds the Customer IPR, and at no time during the Term of this Agreement or after its expiry or termination, will the Customer IPR transfer, be assigned or otherwise vest in EdQuest.
d.    All trademarks displayed on the EdQuest Platform and forming any part of the Products or Services are trademarks of their respective owners. Nothing contained in this Agreement should be construed as granting any licence or right of use to any trademark displayed on the EdQuest Platform without the express written permission of the relevant owner.
e.    Both parties will immediately notify the other in writing of any actual, suspected or anticipated infringement of the other party’s Intellectual Property Rights or breach of this clause.
f.    You agree that your provision of feedback regarding the Product or Service does not give you any Intellectual Property Rights or any other right, title, or interest in or to the EdQuest IPR. We have no obligation to incorporate feedback into any product or service, and you have no obligation to provide feedback.

9. Users
9.1 Maximum Users

a.    You acknowledge that the Fee is set in accordance with the maximum number of Users (teachers and students) permitted to access the Services under your Subscription.
b.    We will monitor the number of Users to whom you grant User Accounts. You must ensure that each User Account is used only by one User and not shared with any other person.
c.    In the event that you obtain User Accounts for more than the maximum number of Users permitted under your Subscription, we reserve the right from time to time to issue an invoice for those additional User Accounts on the same terms as the existing User Accounts.

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9.2 Student Number Variation

We understand that enrolment numbers at school change, especially at the start of the school year.
To accommodate, for our services we’re happy to make reasonable adjustments to the number of student Users you purchase, up or down, within the first 2 months of the school year.

9.3 User Account Usage
A User is deemed to have accessed or used the Services when logging in and answering any question, or accessing any of EdQuest’s course materials provided in the Service.

9.4 User Account Obligations
The Customer must ensure that:

a.    each User complies with the applicable Customer obligations under this Agreement; and
b.    it implements a password policy in respect of access to the Services which reasonably ensures that User passwords meet or exceed industry standard password strength requirements.

10.    Customer obligations and warranties

a.    At its own cost, the Customer must and where applicable must procure that its Users: 

i.    provide their own facilities (including computers, software and telecommunications facilities) necessary for accessing and utilising the Products or Services;
ii.    use the Products or Services for their own business purposes in accordance with the scope of the Licence in clause 2.1 and in relation to the Customer to provide educational services to its students and otherwise not for the benefit of any third party, unless agreed otherwise by EdQuest;
iii.    not upload, either using the Services or otherwise, any content that contains any computer viruses, worms, trojan horses, spyware or any other potentially damaging technology of software;
iv.    not redistribute, copy, publish, sell, alter, modify, tamper with, reverse engineer, decompile, or disassemble the Products or Services, or any content generated by EdQuest unless otherwise agreed by EdQuest;
v.    not use any materials or information created by or provided in connection with, or use the Services for any purpose other than for its own use in accordance with the scope of Licence in clause 3.1;
vi.    not use the Product or Service to transmit unsolicited advertising or spam to other Users;
vii.    not use the Product or Service to distribute content to any person or entity that is not a User unless otherwise allowable as part of the Service;
viii.    not use the Product or Service to store or distribute illegal, harmful or malicious material or link to websites containing such material. You must not use the Product or Service in a way that breaches any law or another person’s Intellectual Property Rights;
ix.    not use the Product or Service to bully, intimidate or harass any User or any other third party. You agree not to create or upload Customer Data or User Content that could be considered hate speech or that incites violence;
x.    not to attempt to bypass security controls or otherwise gain unauthorised access to resources within the Product or Service;
xi.    not to attempt to knowingly disrupt the proper operation of the Product or Service in any way;
xii.    have appropriate policies and procedures in place relating to unauthorised access or misuse of the Products or Services; and
xiii.    maintain the confidentiality of any login name and password allocated to it or the Users and not to disclose them to any third party.

b.    The Customer represents and warrants to EdQuest that:

i.    it has and will during the Term have the legal right and authority to perform its obligations as contemplated under this Agreement;
ii.    it will use the Prodcuts and Services only for lawful purposes and in accordance with this Agreement; and
iii.    to the best of its knowledge as at the date of this Agreement, any software, data, equipment or other materials to be provided by the Customer to EdQuest or employed by the Customer in its use of or receipt of the Prodcuts and Services does not infringe any Intellectual Property Rights of any third party, and is not obscene or defamatory of any person and does not violate any applicable laws.

11.    Customer Data and Privacy

a.    The Customer is responsible for ensuring that all the Customer Data and other materials made available to EdQuest, including all alterations to the Customer Data and such other materials provided by the Customer, are accurate and complete and complies with all applicable laws.
b.    The Customer warrants to EdQuest that the provision of the Customer Data to EdQuest and the use of it by EdQuest in accordance with this Agreement complies with all applicable laws, including but not limited to the Privacy Act 1988 (Cth). The terms of EdQuest’s privacy policy are incorporated and form part of the Agreement. You can read EdQuest’s privacy policy at EdQuesteducation.com/au/other/privacy/ for further details.
c.    The Customer is responsible for obtaining any necessary consents from Users to allow for the use, disclosure and transfer of Personal Information in the course of a User accessing the Products or Services.
d.    The Customer represents and warrants that it has the necessary rights, licences, clearances or consents needed to submit the Customer Data to EdQuest.
e.    The Customer grants a non-exclusive licence to EdQuest for the Term to copy, store, transmit, display, access and use Customer Data to the extent reasonably necessary to provide and maintain the Product and Service for you.
f.    Without limiting any other term of this Agreement:

i.    EdQuest agrees to comply with all applicable laws, including but not limited to the Privacy Act 1988 (Cth) in handling, using and disclosing the Customer Data;
ii.    EdQuest must maintain appropriate data security systems, practices and policies and must take all reasonable steps necessary to ensure that all Personal Information held in connection with this Agreement is secure and stored or recorded accurately and is protected against:

1.    corruption, interference and loss; and
2.    unauthorised access, use, modification, processing, disclosure or other misuse, and to ensure that only authorised EdQuest personnel have access to the information.

iii.    The Customer may request EdQuest to remove or destroy Customer Data held by EdQuest at any time during or subsequent to this Agreement, provided that EdQuest may charge a fee for this service on a time and materials basis. EdQuest retains discretion as to the removal of data no less than 14 days after the expiry of the Agreement.
iv.    You acknowledge that even when you request Customer Data is deleted, and we remove it from the Service, it may persist in backups for a reasonable period of time.

12.    Consent
The Customer acknowledges that EdQuest and its third party service providers may communicate with the Customer for the limited purpose of:

a.    the Customer’s access and use of the Products or Services;
b.    providing the Customer with news and information about the Products or Services;
c.    responding to any specific request the Customer makes of EdQuest;
d.    administering and managing the Products or Services, as well as performing administrative and operational tasks (including risk management, systems development and testing, and market or customer research);
e.    notifying the Customer of any changes to, enhancements of, Scheduled Maintenance or outages that may affect the Products or Services;
f.    providing the Customer with the opportunity to ‘opt-in’ to receiving promotional material from time to time from EdQuest or its services providers; and
g.    providing the Customer with the opportunity to ‘opt-in’ and provide its consent to participate in enhancements to or new features of the Products or Services, through which EdQuest may use information that is posted to or uploaded by the Customer for the purposes of enhancing the Customer’s use of the Services.

13.    Limitation of liability and indemnity

a.    If EdQuest’s performance of its obligations under this Agreement is for any reason affected or delayed:

i.    by the failure of the Customer to comply with its obligations under this Agreement;
ii.    due to the acts or omissions of the Customer or any User;
iii.    by any factors beyond EdQuest’s reasonable control including Force Majeure; or
iv.    due to incorrect access or use of the Products or Services by Users or the Customer,
then EdQuest’s obligations shall be reduced to the extent such events impact the access or use of the Products or Services, and the time for the performance of EdQuest’s obligations under this Agreement shall be extended by a reasonable period having regard to such failures, acts or omissions.

b.    The Customer agrees that: 

i.    EdQuest makes no representation or warranty regarding the accuracy or completeness of any data or information contained in the Products or Services (Information);
ii.    the Information does not purport to be a complete database of all information in EdQuest’s possession or control;
iii.    EdQuest will not be liable to the Customer for any loss, damage, cost or expense (direct or indirect) howsoever arising from reliance upon or use by the Customer of any Information provided, or any failure of EdQuest to provide complete or accurate Information;

c.    Neither party is liable to the other party for any indirect, incidental, special, exemplary or consequential loss or damage, loss of profits or anticipated profits, loss of revenue, economic loss, loss of business opportunity, damage to goodwill, loss of data, deletion or corruption of electronically or digitally stored information or loss or damage resulting from wasted management time irrespective of whether:

i.    the loss or damage is caused by or relates to breach of contract, statute, tort (including negligence) or otherwise;
ii.    the possibility of such loss or damage was foreseeable; or
iii.    EdQuest or any other person was previously notified of the possibility of the loss or damage.

d.    Each party’s total maximum aggregate financial liability to the other party under or in connection with this Agreement or any other agreement between the parties, whether such claim arises in contract or in tort or otherwise, shall not exceed the amount of the total Fees paid in the 12 month period prior to the cause of action.
e.  Subject to this clause 16, reconstruction of data lost or damaged due to EdQuest’s direct acts or omissions in the course of supplying Services will be at EdQuest’s cost provided that EdQuest’s sole liability to the extent permitted by law will be to restore that data from the most recent backup copy.
f.    The Customer indemnifies EdQuest for any and all loss and damage (including legal fees) arising out of or in connection to:

i.    any breach of this Agreement by the Customer or a User;
ii.    any breach of any applicable law, in connection with your use of the Product or Service;
iii.    all and any claims whatsoever and howsoever arising made by any third party in connection with or arising out of the Customer’s access or use of the Products or Services, Customer Data or User Content; and
iv.    any failure by the Customer to obtain a consent necessary for EdQuest to provide the Products or Services.

 

14. Term and termination
14.1 Term and renewal

a.    This Agreement commences on the Commencement Date and will continue for the Initial Subscription unless terminated earlier in accordance with this clause 17. Subscriptions are based on the school calendar year and typically run from 1 January through to 31 December.
b.    At the end of the Initial Subscription, and upon each anniversary of the expiry of the Initial Subscription, the Term of this Agreement will be extended by a further term of 12 months, unless the Customer provides [60] days’ prior written notice that it does not intend that the Term of the Agreement be renewed.
For example if your Initial Subscription runs from 1 January 2022 and ends on 31 December 2022 and you do not wish to renew for a further 12 months, you will need to let us know in writing on or before 1 November 2022. We will also email you to remind you prior to this date, giving you the opportunity to end your subscription. Otherwise the Subscription will automatically renew for a further 12 month period from 1 January 2023. If you are happy for the Subscription to renew then you do not need to do anything. We will be in touch with further details and you will continue to have the benefit of the Services in the new year for a further 12 months.

14.2 Termination

a.    Either party may terminate this Agreement immediately on written notice to the other party if:

1.    the other party fails to comply with a material term of this Agreement and does not remedy that default or breach within 7 days after receiving written notice to do so; or
2.    the other party fails to comply with a material term of this Agreement which is not capable of being remedied.

b.    EdQuest may terminate this Agreement or suspend the Customer’s access to the Services immediately, by written notice to the Customer, if the Customer:

1.    is in breach of any obligations under this Agreement; or
2.    fails to pay EdQuest any amount that is due and payable under this Agreement within 7 days of written notice to the Customer demanding payment.

c.    In addition to its rights, the Customer may terminate the Agreement in writing without fault within the first 30 days from when the Agreement is signed.

14.3 Effect of expiry or termination

a.    Upon expiry or termination of this Agreement:

ix.    EdQuest will immediately cease the provision of the Products and Services;
x.    EdQuest will issue to the Customer a final tax invoice for all Fees due. EdQuest will not refund any Fees to the Customer for any Products and Services provided up to the date of termination;
xi.    each party must pay to the other party all amounts owed by it in connection with this Agreement, including under any indemnities; and
xii.    the Licence will be immediately revoked in accordance with clause 3.6.

b.    Termination of this Agreement will not affect the obligations, rights or remedies of either party under this Agreement which have accrued at the date of termination (including without limitation any obligation of the Customer to pay the Fees in respect of the period prior to the date of termination).

14.4 Data Preservation
Unless required by applicable law we will not delete any Customer Data during any period of restricted access to, or suspension of, the Product or Service.

15.    Force Majeure

a.    Neither party shall be liable for any delay or failure to perform its obligations under this Agreement to the extent that such delay or failure is due to Force Majeure.
b.    Any party who is, by reason of Force Majeure, unable to perform any obligation or condition required by this Agreement to be performed shall notify the other party as soon as possible, with the notice to contain details of the circumstances giving rise to the event of Force Majeure.

16. Miscellaneous
16.1 Notices
Any notice, communication, consent or other document authorised or required to be given or served under this Agreement:

a.    must be in writing addressed to the addressor electronic address of the recipient shown in the Subscription (or to the address or electronic address last notified by the recipient to the sender); and

b.    will be taken to have been duly given or made:

i.    in the case of delivery in person or by post, when delivered at the correct address;
ii.    in the case of delivery by email, as soon as the sender’s information system sends the email to the recipient’s email box provided that the sender does not receive a message sent by the recipient’s information system advising the sender that the recipient has not received the email,
but if delivery or receipt is later than 5.00pm (local time) on a day on which business is generally carried on in the place to which the communication is sent, it will be taken to have been duly given or made at the commencement of business on the next day on which business is generally carried on in the place.

16.2 Entire Agreement
This Agreement contains the entire agreement of the parties with respect to its subject matter. It sets out the only conduct relied on by the parties and supersedes all earlier conduct by the parties with respect to its subject matter.

16.3 Assignment

a.    The Customer is not entitled to assign or otherwise deal with any of its rights and obligations under this Agreement, without the prior written consent of EdQuest.
b.    EdQuest may assign or otherwise deal with any of its rights and obligations under this Agreement, without the prior written consent of the Customer.

16.4 Waiver
No right under this Agreement shall be deemed to be waived except by notice in writing signed by each party. A waiver made by a party will not prejudice its rights in respect of any subsequent breach of the Agreement by the other party.

16.5 Further Assurances
Each party must do all things necessary to give full effect to this Agreement and the transactions contemplated by this Agreement.

16.6 Severability
If any provision of this Agreement is held invalid, unenforceable or illegal for any reason, the Agreement shall remain otherwise in full force apart from such provisions which shall deemed deleted.

16.7 Governing Law
This Agreement is governed by the laws of South Australia. The parties submit to the non-exclusive jurisdiction of the courts exercising jurisdiction there, and agree that they will not object to the venue or claim that the relevant action or proceedings have been brought in an inconvenient forum.

16.8 Embedded YouTube usage in EdQuest
Use of the YouTube widget to search for and display videos from YouTube embedded in EdQuest is subject to the YouTube Terms of Service, https://www.youtube.com/t/terms.