1. Agreement
1.1 Parties contracting under the Terms
You will contract under the Terms as one of two kinds of User:
(a) a School Subscriber; or
(b) a Member,
which will be indicated on the interface of the Software.
1.2 Applicability of Terms
The Terms apply to you as a School Subscriber or a Member to the extent specified
in the Terms.
1.3 Creation of Agreement
The Terms will form a binding agreement between the Provider and the User when you submit the form containing the Terms.
1.4 Authority of signatory
By submitting the form with the Terms, you warrant in your personal capacity that you currently have the authority to create a contractually binding relationship between the User and the Provider for the duration of the Agreement.
1.5 Licence
The Provider grants to the User a non-transferrable, non-exclusive and revocable licence to access the Services, subject to the Agreement and the levels of access granted by the Software.
1.6 Services
The Provider will provide the Services to the User for the term of the Agreement.
1.7 Term
The term of the Agreement will be the Term Length from the date of execution. After this initial term, the Agreement automatically renews for a further Term Length unless the User cancels the Agreement before the end of the term. The Agreement will continue to renew in accordance with this method until the User cancels the Agreement. Such cancellation will take effect at the end of the term in which the User gave a cancellation notice.
2. Setup and Installation
2.1 Provider and User responsibilities
The User will be solely responsible for the setup of the Services.
2.2 Provision of information by User
The User will provide any information requested by the Provider for the purpose of setting up and operating the Services for the User. The User warrants that:
(a) all of the information that it provides to the Provider is accurate and complete in all respects; and
(b) it will inform the Provider whenever any such
information changes.
2.3 Training services from Provider
If the User requires training services, the Provider may charge for those services under a separate agreement.
2.4 Services not locally available
The User agrees and accepts that the Software is hosted by the Provider and will only be accessed using the Internet (or other connection to the Provider’s servers), and will not be available from the User’s own servers.
2.5 Services arrive in parts
The Provider may at its discretion provide the Software in various modules, packages and combinations from which the User may choose, which will also determine the Fees.
3. Accessibility
3.1 Provider can change Services at discretion
The Provider reserves the right to upgrade, maintain, tune, backup, amend, add to or remove features from, redesign, improve or otherwise alter the Services at its sole and absolute discretion.
3.2 User has no access to the servers underlying the Services
The User agrees that the Services are managed and supported exclusively by the Provider and that it will have no access to the servers underlying the Software unless expressly agreed in writing between the parties.
3.3 Inaccessible Services without intention by Provider
From time to time, without notice, access to all or part of the Services may be disrupted or limited. During such an interruption, the Provider will use its best endeavours to restore access to the Services as soon as practicable.
3.4 Provider may take down Services
The Provider reserves the right, without notice, to make some or all of the Services inaccessible from time to time as is required for upgrades, maintenance and updates.
3.5 Parts of the Services controlled by third parties
The User agrees and accepts that the Services are operated from servers owned and controlled by a third party. As such, the User understands that certain functions are out of the control of the Provider.
4. Support and Maintenance
4.1 Delivery of support and maintenance
The Provider will provide support and maintenance in respect of the Services via an electronic interface at the sole and absolute discretion of the Provider.
4.2 Additional Work
If the User requires support and maintenance outside the scope of the Agreement, the Provider may charge the User for it under a separate agreement.
5. Payment for the Services
5.1 Users
The User agrees to pay the Provider the Fees in exchange for access to the
Services. In accordance with the Fees, the Provider may provide the Services to a User free of charge for that User. In this instance, the User is obligated to abide by the Terms in exchange for the free access to the Services.
5.2 Fees exclusive of GST
All Fees quoted for the Services by the Provider are exclusive of GST unless expressly stated otherwise.
5.3 Making payment due
The User authorises the Provider to effect automatic payment transactions on a monthly basis.
5.4 Method of payment
The User will pay the Fees via a payment portal made available by the Provider or by any other means approved by the Provider in writing.
5.5 Currency for payment
The Fees will be calculated and paid for in Australian dollars.
5.6 Provider’s rights upon failure to pay
If the User fails to pay the Provider on the due date for payment, the Provider may immediately do any or all of the following, without any liability, until all overdue Fees are paid:
(a) suspend the User’s use of any or all of the Services (and any functionality for Authorised Users based on Permissions);
(b) terminate the Agreement without any obligation to refund the User any money in respect of the cancellation, even if the contractual term has not expired (along with any functionality for Authorised Users based on Permissions);
(c) initiate proceedings against the User to recover the overdue amount (despite any dispute resolution clause in the Agreement); and
(d) recover all costs in relation to any action taken against the User to recover overdue amounts, including but not limited to legal costs and outlays on a full indemnity basis.
6. Authorised Users
6.1 Authorised Users
The User may designate certain Users as Authorised Users. The authorising User agrees that it is liable for all activities conducted by Authorised Users that are allowed
as a result the Permissions granted.
6.2 Authorised User setup
The User warrants that all of the information provided to grant Permissions on an Authorised User (whether that information is provided by an Authorised User or the granting User) is accurate and complete in all respects, and will update the Provider whenever any of this
information changes.
6.3 Responsibility for Compliance of Authorised Users
The User is responsible for procuring the compliance of their Authorised Users with the Agreement to the fullest extent the Agreement applies to the use of the Services by Authorised Users in connection with the Permissions granted.
7. Members
7.1 Members
The User may invite a person to create an account as a Member. The Provider may, at its absolute and sole discretion, choose:
(a) to open, or not to open, an account for a Member requested by the User; or
(b) to contract, or not to contract, with any Member.
7.2 Member Terms
The User agrees and acknowledges that the Provider will contract with Members under the Terms to the extent that it is applicable, and that no access to the Services can be granted to Members until they have agreed to the Terms.
7.3 Member cancellation
The User acknowledges and agrees that the Provider may suspend or cancel the account of a Member in breach of the Terms.
7.4 Member Permissions
Members agree and acknowledge that certain of their Permissions may be withdrawn if:
(a) the User granting those Permissions has their access to the Services suspended or limited; or
(b) the User granting those Permissions withdraws them; or
(c) the Agreement between the Provider and the User granting the Permissions ends.
8. Undertakings
8.1 Applicability to Authorised Users
The User is responsible for ensuring that their Authorised Users comply with the undertakings detailed in this clause. Each of the Provider’s rights with respect to
the User, or its conduct, in this clause will also be with respect to their Authorised
Users and their conduct.
8.2 Provider right to suspend
The Provider reserves the right to:
(a) limit or suspend the User’s access to the Service; and
(b) limit or suspend any functionality for Authorised Users based on Permissions; and
(c) remove Data,
if the User breaches its undertakings in this “Undertakings” section, or the User uses the Services inappropriately (as determined at the sole and absolute discretion of the Provider).
8.3 User will not disrupt or damage the Services
The User will not:
(a) use the Services in any way which could interfere with or damage the Provider’s network, any other operator’s network, or another User’s enjoyment of the Services;
(b) use the Software for unsolicited or unreasonably frequent or voluminous communications; or
(c) publish or otherwise communicate any review of, or information about, the performance of the Services to any third party without the prior written consent of the Provider, except as specifically provided for in an Agreement with the Provider.
8.4 User will not misuse the Services
The User must use the Software only in the ways that it is designed to be used, and will not:
(a) disable or circumvent any protection or disabling mechanism related to the Services;
(b) install or store any software applications, code or scripts on or through the Services unless it first obtains the written permission of the Provider; or
(c) use the Service to bully, harass, degrade, insult or otherwise demean any person (as determined by the Provider) or to partake in offensive or indecent conduct.
8.5 Spam compliance
The User will ensure that all electronic communications sent through or in connection with the Software feature an unsubscribe facility, and that they comply with the requirements of the SPAM Act 2003 (Cth) when sending electronic communications through the Software. The User indemnifies Provider for any breach of that Act by the User.
8.6 User will not breach laws or third party rights
The User will not store or access any Data if such access or storage would:
(a) breach any Intellectual Property Right;
(b) breach any Privacy Law; or
(c) breach any other law or applicable code (including any common law, statute, delegated legislation, rule or ordinance of the Commonwealth, or a State or Territory).
8.7 User will not store malicious content
The User will not store, access or operate any data, code or software on, or in connection with, the Provider’s servers that could be categorised or identified as:
(a) a computer virus or malicious code;
(b) pornographic material; or
(c) connected with the infringement of Intellectual Property Rights.
Such categorization or identification will be at the sole discretion of the Provider.
8.8 User is in breach even if not in control of account
In accordance with the section of the Terms entitled “Security”, the User will be responsible for the breach of any undertaking or warranty in this section, regardless of whether that breach is caused by a security breach of any kind.
9. Security
9.1 Provider security responsibilities
The Provider will take reasonable steps to ensure that the Services are secure from unauthorised access consistent with generally accepted industry standards.
9.2 User security responsibilities
The User is solely responsible for:
(a) keeping any usernames and passwords for its Services account secure;
(b) the use of its account, irrespective of who is using it, even if it is used without the User’s permission.
10. Data
10.1 Storage with third party
The Provider may subcontract the storage of the Data to a third party (or multiple third parties) without notification to or consent from the User.
10.2 Responsibility for backup
The Provider will put in place and manage backup procedures to backup the Data.
10.3 Frequency of backup
The Provider will create restorable backup copies of the User’s Data every day, and store each back up for seven days.
10.4 Risk in backup by provider
The Provider makes no warranties or guarantees, implied or express, in respect of the retention of or continued accessibility of any backups in connection with the Services.
10.5 Deletion of Data
The Provider will have the right to delete any Data three months after the Agreement is terminated. At its sole and absolute discretion, the Provider may choose not to delete the Data after the Agreement is terminated.
10.6 Return of Data
The User may obtain the Data within 3 months of the termination if it bears the costs of the hardware and incidental costs reasonably required by the Provider to effect a transfer of the Data to the User (Data Return Costs). The Provider will not be obliged to return Data to the User until the User has paid the Data Return Costs in advance to
the Provider, as well as any outstanding Fees.
11. Privacy
11.1 No warranty in respect of privacy by Provider
The Provider makes no warranty as to whether the User’s use of the Services will comply with the User’s obligations under Privacy Law. It is the User’s responsibility to determine whether the Services are appropriate for the User’s circumstances.
11.2 Provider may make changes to Services with Privacy Law changes
The Provider may make any changes to the Services that it considers, at its sole and absolute discretion, to be beneficial for compliance with:
(a) Privacy Law; or
(b) any guidance issued by the Office of the Australian Information Commissioner.
11.3 Privacy compliance
The User agrees and consents to the Provider’s use of Personal Information in accordance with the Provider’s Privacy Policy, available at www.wurdle.com/info/privacy.aspx.
11.4 When the Provider may disclose Data to third parties
The Provider may access, review or copy on its own account, or disclose and transfer to any third party, any Data, to the extent required:
(a) to permit third party service providers to perform their services in connection with the Provider’s business;
(b) to interact with the Provider’s related bodies corporate;
(c) to effect a sale (or proposed sale) of all or part of the Provider’s business;
(d) to satisfy any contractual obligation that the Provider has to any third party;
(e) where the User has overdue Fees, to debt collection agencies or its legal advisers to recover the amount due;
(f) for the Provider to ensure that the User is not in breach of the Agreement; and
(g) as required or permitted by any law that the Provider and its related bodies corporate may be subject to.
11.5 User privacy obligations
The User undertakes that when it stores any Personal Information on the Service it will notify the relevant individuals that such information may be accessible by the Provider.
12. Intellectual Property Rights
12.1 Ownership of the Data
The User shall at all times during the course of the Agreement be the exclusive owner of the Data.
12.2 Licence to Data
The User grants the Provider a nonexclusive, irrevocable, worldwide, perpetual, unlimited, assignable, sub-licensable, fully paid up and royalty-free right to copy, prepare derivative works of, improve, distribute, publish, remove, retain, add to, process, analyse, use and commercialise, in any way now known or in the future discovered (subject to the Privacy Act), any Data.
12.3 Provider Intellectual Property Rights
The Provider owns the Provider IP, and in any circumstances where it does not automatically have such ownership, the User will transfer it to the Provider and will do all things necessary to ensure that full legal ownership passes to the Provider.
12.4 Provider grants licence to User to use Provider IP
The Provider grants to the User a non-exclusive royalty-free licence to use the Provider IP for the sole purposes of accessing and using the Software in accordance with the Agreement. This licence will automatically terminate when the Agreement terminates.
12.5 User will not copy Provider IP
The User warrants that it will not do any of the following, or permit any person over whom it has effective control to do so:
(a) copy or reproduce, or create an adaptation or translation of, all or part of the Provider IP in any way, except to the extent that reproduction occurs automatically through the ordinary use of the Services in accordance with the Agreement;
(b) incorporate all or part of the Provider IP in any other webpage, site, application or other digital or non-digital format;
(c) sell, license, sublicense, lease, rent, distribute, disclose, permit access to, or transfer to any third party, whether for profit or without charge, any portion of the Services on any medium; or
(d) directly or indirectly copy, recreate, decompile, reverse engineer or otherwise obtain, modify or use any source or object code, architecture, or algorithms contained in the Services or any documentation associated with them.
13. Termination
13.1 Notification of changes before the end of the term
The Provider may update the Terms at its discretion by providing written notice to
the User. The updates will take effect at the time indicated in notice, or 30
days from the notice (whichever is later). If the User does not accept such
changes it must immediately cancel its account.
13.2 Termination on breach
If the User breaches any provision of the Agreement, the Provider may give the breaching User a written notice requiring them to remedy the breach. If the breaching party does not remedy the breach within 10 days of receiving such a notice, the other party may terminate the Agreement.
13.3 Authorised Users
The User agrees that any access or functionality granted to Authorised Users by the
granting of Permission will also cease if the Agreement between the granting User and the Provider is terminated.
13.4 Termination on Insolvency Event
Either party may immediately terminate the Agreement by notice to the other party if the other party suffers an Insolvency Event.
14. Dispute Resolution
14.1 Initiation of Dispute
If any dispute arises between the User and the Provider in connection with the Agreement (Dispute), then either party may notify the other of the Dispute with a notice (Dispute Notice) which:
(a) includes, or is accompanied by, full and detailed particulars of the Dispute; and
(b) is delivered within 10 Business Days of the circumstances giving rise to the Dispute first occurring.
14.2 Meeting to resolve dispute
Within 10 Business Days after a Dispute Notice is given, a representative (with the authority to resolve the dispute) of the User and Provider must meet and seek to resolve the Dispute.
14.3 Mediation
If the representatives of the User and Provider do not resolve the Dispute within 20 Business Days, the Dispute will be submitted for mediation in accordance with, and subject to, The Institute of Arbitrators & Mediators Australia Mediation and Conciliation Rules.
14.4 Mediation to final and binding arbitration
If the Dispute is not settled within 20 Business Days of the submission to mediation (unless such period is extended by agreement of the parties), it will be submitted to final and binding arbitration in accordance with, and subject to, The Institute of Arbitrators & Mediators Australia Rules for the Conduct of Commercial Arbitrations.
14.5 Costs for mediation / arbitration process
When the Dispute is submitted to mediation or arbitration, each party will pay its own Costs for the proceedings. The parties will share equally the Costs payable to the Institute of Arbitrators & Mediators Australia.
14.6 Court proceedings not to be brought before process
Subject to this section, a party must not bring court proceedings in respect of any Dispute unless it first complies with the requirements of the dispute resolution mechanism outlined in this clause.
14.7 Parties can seek urgent injunctive relief
Nothing in this section prevents either party from instituting court proceedings to seek urgent injunctive, interlocutory or declaratory relief in respect of a Dispute.
14.8 Obligations and rights remain current during dispute
Despite the existence of a Dispute, the parties must continue to perform their respective obligations under the Agreement and any other agreement between the parties.
14.9 Non-excludable conditions
The obligations set out in this “Dispute Resolution” clause are available to the fullest extent available under the law, but subject to the Non Excludable Conditions to the extent of any inconsistency.
14.10 Dispute resolution procedure not to apply to debt enforcement
The dispute resolution procedure set out in this clause will not apply in any instance where the Provider seeks to enforce a debt in connection with the Agreement.
15. Indemnity
15.1 User indemnifies Provider for User use of Services
Subject to the application of any Non Excludable Condition, the User indemnifies the Provider and its directors, employees and agents against all claims, demands, proceedings and other liability arising wholly or partially, directly or indirectly, from the User’s use of the Services.
15.2 User indemnifies Provider for User breach
Without limiting the generality of the above, the User indemnifies the Provider and its officers, employees, contractors and agents (the Indemnified) against any costs, expenses, losses, damages and liability suffered or incurred by the Indemnified arising directly or indirectly from the User’s breach of the Agreement and any negligent or unlawful act or omission of the User in connection with the Services.
16. Exclusion of Liability
16.1 Exclusions subject to the law
The obligations set out in this section are subject to Non Excludable Conditions to the extent of any inconsistency.
16.2 Exclusion of implied guarantees, conditions and warranties
To the extent permitted by law, the Provider excludes all implied guarantees, conditions and warranties from the Agreement and the Services, except any Non Excludable Condition.
16.3 Exclusion of Provider’s liability
Subject to the application of any Non Excludable Condition, the Provider excludes all other liability to the User for any costs, expenses, losses and damages suffered or incurred directly or indirectly by the User in connection with the Agreement or Services, including Consequential Loss, whether that liability arises in agreement, tort (including by the Provider’s negligence) or under statute, including liabilities arising:
(a) as a result of the Services being inaccessible to the User for any reason;
(b) from any bug or virus in any part of the Services;
(c) from loss, corruption or any other inaccessibility in respect of the Data or any
other data in connection with the Services; and
(d) any breach of its security that results in unauthorised access to or corruption of
Data and any breach of obligations under Privacy Law.
16.4 Where a Non Excludable Condition is deemed to apply
Where a Non Excludable Condition is deemed to apply, to the fullest extent possible under the law, the Provider limits its liability for any breach to the re-supply of the Services or any associated goods (or software) affected by the breach, or the payment of the cost of such re-supply, which is to be at the Provider’s option.
17. Unforeseen Events
17.1 Suspension of Provider’s obligations for duration of Unforeseen Event
The obligations of the Provider under the Terms are suspended to the extent that an Unforeseen Event affects them, as long as the Unforeseen Event continues. The
occurrence of an Unforeseen Event does not suspend the obligation of the School
Subscriber to pay any money under the Terms.
17.2 Obligation to minimise the effects of an Unforeseen Event
A party claiming an Unforeseen Event must use their best endeavours to remove, overcome or minimise the effects of that Unforeseen Event as quickly as possible.
17.3 Termination as a result of an Unforeseen Event
If an Unforeseen Event continues for more than 50 Business Days, the Provider may terminate any agreement in force for the provision of the Services by notice in writing to the User of not less than 10 Business Days.
18. Notice
18.1 Communication in connection with the Agreement must be in writing
Communications must be in writing.
18.2 Parties may serve communications by Email
The Provider may serve any Communication on the User by sending it to:
(a) the email address associated with the User’s account (which the User agrees to keep up to date at all times); or
(b) the email address associated with the User’s billing details (which the User agrees to keep up to date at all times).
18.3 How an email is taken to have been received by the addressee
A Communication by email will be taken to have been received by the addressee 24 hours after the email was sent, unless the party sending the email knows or reasonably ought to suspect that the email and the attached communication were not delivered to the addressee's domain specified in the email address.
19. General
19.1 Entire Agreement
The Terms and any tax invoice represent the entire agreement between the Provider and the User in relation to the Services.
19.2 Duties in respect of the Agreement
The User will pay all stamp duties and any related taxes, fines and penalties in respect of the Agreement.
19.3 Agreement Confidential
The terms of the Agreement are all confidential information, which are not to be disclosed by the User to any third party with the exception of its professional advisers.
19.4 Variation of Agreement
No Agreement can be varied, except in writing by an authorised officer of the Provider. No purchase order or other document issued by the User will vary any Agreement, or be considered when considering the terms of agreement between the Provider and the User.
19.5 Assignment and Novation of Agreement by User
The User cannot assign, novate or otherwise transfer any of its rights or obligations under the Agreement without the prior written consent of the Provider.
19.6 Assignment and Novation by Provider
The Provider may assign, novate or otherwise transfer any of its rights or obligations under any Agreement to a third party without notice to, or the prior consent of, the User, but if the Provider requires, the User will sign any documents to give effect to an assignment, novation or transfer by the Provider under this clause.
19.7 Counterparts
The Agreement may be executed with any number of counterparts and by the parties on separate counterparts.
19.8 Governing Law
The laws of the state of New South Wales govern the Agreement and each party submits to the non-exclusive jurisdiction of the courts of New South Wales.
19.9 Waiver
No right of the Provider will be deemed waived and no breach excused unless such waiver or consent is provided in writing.
19.10 Relationship of parties
The relationship between the Provider and the User under any Agreement does not form a joint venture or partnership.
20. Definitions
(a) Agreement means the legally binding agreement arising under the Terms between the Provider and the User.
(b) Authorised User means an employee, agent, contractor or customer of the User, using the Services as a Member, granted Permissions.
(c) Business Days means a day (other than a Saturday, Sunday or public holiday) on which banks are open for general banking business in the state that the Provider’s corporation is registered.
(d) Communication means any written communication including each notice, consent, approval, request and demand) under or in connection with the Agreement.
(e) Consequential Loss means loss of revenue, loss of profits, loss of anticipated savings or business, pure economic loss, loss of data, loss of value of equipment (other than the cost of repair), loss of opportunity or expectation loss and any other form of consequential, special, indirect, punitive or exemplary loss or damages.
(f) Data means any data uploaded by a User to the electronic servers and infrastructure used to provide the Services.
(g) Fees mean the fees payable by the User, depending on the access to functionality granted, which are set out at www.wurdle.com.
(h) Insolvency Event means in respect of a party, the appointment of an administrator, a receiver or receiver and manager in respect of that party, an application to a court or an order for the winding up of the party, or the occurrence of anything analogous or having a substantially similar effect to any of the preceding events.
(i) Intellectual Property Rights means all present and future rights conferred by statute, common law or equity (and all moral rights) in or in relation to business names, circuit layouts, computer software, confidential information, copyright, designs, domain names, formulas, inventions, knowhow, patents, plant varieties, recipes, trade marks, and other results of intellectual activity in the industrial, commercial, scientific, literary or artistic field, the benefit of any application to register such a right and the benefit of any renewal or extension of such a right.
(j) Member means an individual user of the Services.
(k) Non Excludable Condition means any guarantee, condition or warranty (such as
the consumer guarantees implied by the Competition and Consumer Act 2010
(Cth)), which cannot by law be excluded.
(l) Permission means a functional permission granted by the User to give another User certain access rights to:
(i) content and associated functionality; and, or
(ii) administrative functionality with respect to the granting User
(m) Personal Information has the meaning given to that term in the Privacy Act.
(n) Privacy Act means the Privacy Act 1988(Cth).
(o) Privacy Law means:
(i) the Privacy Act; and
(ii) any code registered under the Privacy Act or Australian Privacy Principles.
(p) Provider means Rodomontade Pty Ltd (ACN 130 330 611).
(q) Provider IP means all Intellectual Property Rights subsisting in:
(i) the Software or any part of it; or
(ii) any additions or alterations made to the Software, including those made with the input of the User.
(r) Services means the:
(i) Software;
(ii) support and maintenance in respect of the Software; and
(iii) any other service rendered by the Provider to the User within the scope of the Agreement.
(s) Software means the:
(i) software application found at the URL www.wurdle.com and all of its subdomains, derived URLs and associated URLs; and
(ii) electronic infrastructure and configuration used to provide the Services.
(t) School Subscriber means any entity using the Services under the Terms with the primary purpose of providing access to Data to Members.
(u) Term Length means the term set out at www.wurdle.com.
(v) Terms mean this document, entitled “Software as a Service Terms”.
(w) Unforeseen Event means an act of war (whether declared or not) or terrorism, the mobilisation of armed forces, civil commotion or riot, natural disaster, industrial action or labour disturbance, currency restriction, embargo, action or inaction by a government provider, a failure of a supplier, public utility or common carrier or computer disruption due to the effects of a virus or other malicious code.
(x) User means a School Subscriber or a Member.