This agreement is entered into between Smiling Mind ACN 161 428 459 (Smiling Mind, we, us, our) and the purchaser of a Smiling Mind User Licences for access to Digital Products (as those terms are defined in clause 1.1 below) (Customer, you), and you agree to be bound by the terms of this agreement on placing an order for a Digital Product.
Smiling Mind Digital Product Agreement
1. Defined terms and interpretation
1.1 Defined terms
In this agreement:
Access Code means the code generated by Smiling Mind used to obtain first access to a Digital Product.
Australian Consumer Law means the Australian Consumer Law set out in Schedule 2 to the Competition and Consumer Act 2010 (Cth).
Business Day means:
(a) for receiving a notice under clause 20, a day that is not a Saturday, Sunday, public holiday or bank holiday in the place where the notice is received; and
(b) for all other purposes, a day that is not a Saturday, Sunday, bank holiday or public holiday in Melbourne, Victoria, Australia.
Confidential Information of a Disclosing Party means:
(a) the following information, regardless of its form and whether the Receiving Party becomes aware of it before or after the date of this agreement:
(i) information that is by its nature confidential;
(ii) information that is designated by the Disclosing Party as confidential; and
(iii) information the Receiving Party knows, or ought to know, is confidential;
(b) all notes and other records prepared by the Receiving Party based on or incorporating information referred to in paragraph (a); and
(c) all copies of the information, notes and other records referred to in paragraphs (a) and (b),
but excludes information that:
(d) the Receiving Party creates (whether alone or jointly with any third person) independently of the Disclosing Party; or
(e) is public knowledge (otherwise than as a result of a breach of confidentiality by the Receiving Party or any of its permitted disclosees).
Customer Data means the data inputted by the Customer, Users, or Smiling Mind on the Customer's behalf for the purpose of using the Services or facilitating the Customer’s use of the Services.
Digital Product means each Smiling Mind digital product at https://learninghub.smilingmind.com.au/, https://app.smilingmind.com.au/, or such other website notified to you by Smiling Mind from time to time.
Direction has the meaning given by clause 12.2.
Disclosing Party means a party who discloses or makes available Confidential Information to a Receiving Party.
Documentation means any documentation made available by us under or in connection with this agreement, a Digital Product or the Services, including any changes and additions to that documentation from time to time.
Insolvency Event means any of the following events:
(a) a party disposes of the whole or any part of its assets, operations or business other than in the ordinary course of business;
(b) a party ceases to carry on business;
(c) a party ceases to be able to pay its debts as they become due;
(d) any step is taken by a mortgagee to take possession or dispose of the whole or any part of a party's assets, operations or business;
(e) any step is taken to enter into any arrangement between a party and its creditors; or
(f) any step is taken to appoint a receiver, a receiver and manager, a trustee in bankruptcy, a liquidator, a provisional liquidator, an administrator or other like person of the whole or any part of a party's assets or business.
Intellectual Property Rights means all intellectual property rights, including the following rights:
(a) patents, copyright (including future copyright), rights in circuit layouts, designs, moral rights, trade and service marks (including goodwill in those marks), domain names and trade names and any right to have Confidential Information kept confidential;
(b) any application or right to apply for registration of any of the rights referred to in paragraph (a); and
(c) all rights of a similar nature to any of the rights in paragraphs (a) and (b) that may subsist anywhere in the world (including Australia),
whether or not such rights are registered or capable of being registered.
Law means any applicable statute, regulation, by-law, ordinance or subordinate legislation in force from time to time in the relevant jurisdiction, and includes the common law and equity as applicable from time to time and any applicable industry codes of conduct.
Licence Period, in respect of a Digital Product, means a period of 12 months commencing on the date on which you are provided with the Access Code by Smiling Mind for that Digital Product.
Non-excludable Obligation has the meaning given by clause 16.1.
Personnel means, in relation to a party, the officers, employees, contractors and agents of that party (but, in the case of you, excludes us and our Personnel).
Receiving Party means a party to this agreement who obtains Confidential Information of the other party to this agreement.
Service Charges means all amounts paid and payable pursuant to clause 9.
Services means provision of access to a Digital Product by Smiling Mind for the number of Users for which a User Licence is purchased, and the Support Services.
Support Hours means 9am to 5pm on Business Days.
Support Services means provision of remote support accessible during the Support Hours via email to email@example.com, or such other email address as may be notified by us from time to time, for the resolution of technical issues and User questions relating to the Digital Product.
Term has the meaning given by clause 3.
User means each person to whom you provide the Access Code, which may include the Customer her/himself.
User Credentials means the email address and password created by each User to access the use a Digital Product.
User Licence means a licence that entitles a User to the Services.
In this agreement, except where the context otherwise requires:
(a) the singular includes the plural and vice versa, and a gender includes other genders;
(b) another grammatical form of a defined word or expression has a corresponding meaning;
(c) a reference to a clause, paragraph, schedule or annexure is to a clause or paragraph of, or schedule or annexure to, this agreement, and a reference to this agreement includes any schedule or annexure;
(d) a reference to a document or instrument includes the document or instrument as novated, altered, supplemented or replaced from time to time;
(e) unless specified otherwise, a reference to A$, $A, dollar or $ is to Australian currency;
(f) a reference to a party is to a party to this agreement, and a reference to a party to a document includes the party's executors, administrators, successors and permitted assigns;
(g) a reference to a statute, ordinance, code or other law includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements of any of them;
(h) the meaning of general words is not limited by specific examples introduced by including, for example or similar expressions;
(i) a rule of construction does not apply to the disadvantage of a party because the party was responsible for the preparation of this agreement or any part of it; and
(j) if a day on or by which an obligation must be performed or an event must occur is not a Business Day, the obligation must be performed or the event must occur on or by the next Business Day.
Headings are for ease of reference only and do not affect interpretation.
2. Precedence of documents
2.1 Composition of agreement
This agreement consists of:
(a) this document; and
(b) any document incorporated by reference into, this document.
If there is any inconsistency or conflict between the provisions of any of the documents listed in clause 2.1, then the provisions of an earlier mentioned document will prevail to the extent of an inconsistency or conflict with the provisions of a document that is lower down in that list.
This agreement commences on the date on which you place an order for a Digital Product, and continues until expiry of the Licence Period, unless terminated earlier in accordance with its terms (Term).
4.1 Grant of licence
(a) Subject to payment of the Service Charges, the restrictions set out in this clause 4, and the other terms and conditions of this agreement, Smiling Mind hereby grants you a non-exclusive, non-transferable, revocable right to permit Users to access and use the Services during the Licence Period solely for each User's personal, non-commercial purposes.
(b) For the avoidance of doubt, the Licence Period commences on the date on which Smiling Mind provides you with the Access Code, not the date on which you provide the Access Code to Users or Users first access the Digital Product. Smiling Mind will be under no obligation to extend the Licence Period by any period of time between its provision of the Access Code to you, and your provision of the Access Code to Users and/or Users first access the Digital Product.
You must (and must ensure that your Personnel and Users) comply with all reasonable directions issued by us regarding access to and use of the Services.
4.3 Access and usage restrictions
In relation to your Users, you undertake that:
(a) the maximum number of Users to whom you provide the Access Code and authorise to access and use the Services will not exceed the number of User Licences you have purchased from Smiling Mind;
(b) you will not allow any User Licence to be used by more than one individual for the duration of the Licence Period; and
(c) each User will create User Credentials for her or his use of the Services, and will keep her or his User Credentials and the Access Code confidential.
5. Our obligations
We will, during the Licence Period, provide the Services to you on and subject to the terms of this agreement.
6. Your obligations
(a) provide us with:
(i) all necessary co-operation in relation to this agreement; and
(ii) all necessary access to such information as may be required by us,
in order for us to render the Services, including but not limited to Customer Data, security access information and configuration services;
(b) comply with all applicable Laws and regulations with respect to your activities under this agreement;
(c) not copy or download, in a systematic manner, any content, graphics, video, text or animation from the Digital Product, or communicate or otherwise distribute such systematically-obtained content, graphics, video, text or animation (or allow any User to do so);
(d) not directly or indirectly, introduce (or permit the introduction by your Users of) any virus, worm, trojan or other malicious code into the Digital Product, or in any other manner whatsoever, corrupt, degrade or disrupt the operation of the Services;
(e) carry out all other Customer responsibilities set out in this agreement in a timely and efficient manner. In the event of any delays in the your provision of such assistance as agreed by the parties, we may adjust any agreed timetable or delivery schedule as reasonably necessary;
(f) ensure that your Users use the Services in accordance with the terms and conditions of this agreement and you:
(i) agree that you will be responsible and liable for the acts and omissions of each User in connection with the Digital Product and this agreement; and
(ii) accept all liability for any unauthorised use of any User Credentials (other than any unauthorised use resulting from any negligent act or omission legally attributable to us);
(g) obtain and maintain all necessary licences, consents, and permissions necessary for us, our contractors and agents to perform our obligations under this agreement, including without limitation, the Services;
(h) not (nor permit any Users to) enter or upload any data, information or other materials into the Digital Product, or otherwise use the Services:
(i) to engage in any activity that infringes a third party's rights, or in a manner that interferes with the rights of any other person;
(ii) to infringe our Intellectual Property Rights or the Intellectual Property Rights of any third party;
(iii) in any way that is threatening, abusive, harassing, defamatory, obscene, fraudulent, misleading or deceptive or otherwise illegal; o
(iv) in any way that constitutes misuse or resale of the Digital Product or any associated materials;
(i) ensure that your network and systems comply with any relevant specifications provided by us from time to time; and
(j) be solely responsible for procuring and maintaining your network connections and telecommunications links from your systems to the our data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to your or a User's network connections or telecommunications links, or caused by the Internet.
7. Customer Data
(a) As between Smiling Mind and the Customer, the Customer will own all rights, title and interest in and to all of the Customer Data and will have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data.
(b) The Customer hereby grants Smiling Mind a non-exclusive, non-transferable, sub-licensable licence for the Term to access and use the Customer Data to the extent required to provide the Services.
8. Third party providers
9. Charges and payment
(a) The Customer must purchase a User Licence for each User to access the Services.
(b) User Licences can be purchased at https://smilingmind.org.au/, or such other website notified to you by Smiling Mind from time to time.
(c) Notwithstanding paragraph (b), if the Customer is an Australian registered school, you may elect to purchase User Licences directly from Smiling Mind, in which case:
(i) we will issue an invoice to the Customer; and
(ii) you must pay all Service Charges set out in the applicable invoice without set off, withholding or deduction.
(d) We are under no obligation to provide the Services (or any part of the Services) prior to payment of the Service Charges in full.
10.1 Defined terms
In this clause, a word or expression defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) has the meaning given to it in that Act.
GST inclusive amounts
For the purposes of this agreement, where the expression GST inclusive is used in relation to an amount payable or other consideration to be provided for a supply under this agreement, the amount or consideration will not be increased on account of any GST payable on that supply.
Consideration GST exclusive
Any consideration to be paid or provided for a supply made under or in connection with this agreement, unless specifically described in this agreement as GST inclusive, does not include an amount on account of GST.
10.4 Gross up of consideration
Despite any other provision in this agreement, if a party (Supply Maker) makes a supply under or in connection with this agreement on which GST is imposed (not being a supply the consideration for which is specifically described in this agreement as GST inclusive):
(a) the consideration payable or to be provided for that supply under this agreement but for the application of this clause (GST exclusive consideration) is increased by, and the recipient of the supply (Recipient) must also pay to the Supply Maker, an amount equal to the GST payable by the Supply Maker on that supply; and
(b) the amount by which the GST exclusive consideration is increased must be paid to the Supply Maker by the Recipient without set off, deduction or requirement for demand, at the same time as the GST exclusive consideration is payable or to be provided.
10.5 Reimbursement (net down)
If a payment to a party under this agreement is a reimbursement or indemnification, calculated by reference to a loss, cost or expense incurred by that party, then the payment will be reduced by the amount of any input tax credit to which that party is entitled for that loss, cost or expense.
11. Intellectual Property Rights
(a) You acknowledge and agree that Smiling Mind and/or its licensors own all rights, title and interests (including all Intellectual Property Rights throughout the world) in the Digital Products, Services and Documentation (Smiling Mind IP). Except to the extent expressly provided in this agreement, you are not granted any right, title or interest in the Smiling Mind IP.
(b) You must not do, omit to do, attempt to do, or allow anyone to do anything that infringes the Smiling Mind IP, including:
(i) copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit or distribute any part or all of the Smiling Mind IP (as applicable) in any form or media or by any means; or
(ii) decompile, disassemble, reverse engineer or otherwise reduce to human-perceivable form any part or all of the Smiling Mind IP,
(iii) as expressly permitted by non-excludable laws; or
(iv) with our prior written consent.
12. Confidential Information
12.1 Use and disclosure
A Receiving Party:
(a) may use Confidential Information of the Disclosing Party only for the purposes of this agreement; and
(b) must keep confidential all Confidential Information of the Disclosing Party except:
(i) (in the case of you) to the extent required to enjoy the benefit of the Services;
(ii) for disclosures permitted under this clause 12; and
(iii) to the extent (if any) the Receiving Party is required to disclose any Confidential Information by Law.
12.2 Disclosure requirements
A Receiving Party may disclose Confidential Information of the Disclosing Party to persons who:
(a) have a need to know for the purposes of this agreement (and only to the extent that each has a need to know); and
(b) before disclosure:
(i) in the case of the Receiving Party's officers and employees, have been directed by the Receiving Party to keep confidential all Confidential Information of the Disclosing Party; and
(ii) in the case of other persons, have agreed in writing with the Receiving Party to comply with substantially the same obligations in respect of Confidential Information of the Disclosing Party as those imposed on the Receiving Party under this agreement,
(each a Direction).
12.3 Receiving Party's obligations
A Receiving Party must:
(a) ensure that each person to whom it discloses Confidential Information of the Disclosing Party under clause 12.2(b) complies with its Direction; and
(b) notify the Disclosing Party of, and take all steps to prevent or stop, any suspected or actual breach of a Direction.
(a) Each party agrees to be bound by applicable privacy and data protection Laws, including the Privacy Act 1988 (Cth), with respect to any act done or practice engaged in by either party for the purposes of this agreement.
(b) Each party must (and must ensure that its Personnel) comply with any applicable privacy or data protection Laws and all guidelines issued by applicable privacy offices (and any similar regulatory bodies).
14. Remedy for breach of confidentiality or privacy obligations
Each party acknowledges that damages may be an insufficient remedy for a breach, or suspected breach of a party's obligations under clauses 12 or 13, and agrees that the other party may seek such equitable relief (including injunctive relief) as is necessary to remedy or prevent such breach without having to prove or establish any special damage arising from such breach or suspected breach.
(a) Each party warrants and represents that:
(i) its signing, delivery and performance of this agreement will not constitute (1) a violation of any judgment, order or decree, (2) a material default under any material contract by which it or any of its assets are bound, or (3) an event that would, with notice or lapse of time, or both, constitute such a default; and
(ii) it has the requisite power and authority to enter into this agreement and to carry out the obligations contemplated by this agreement.
(b) You acknowledge and agree that the provision of the Services in accordance with this agreement constitutes the provision of educational services only and we are not, for the avoidance of doubt, providing any medical or psychological services to you or your Personnel.
16.1 No exclusion or limitation
(a) To the extent that you acquire goods or services from us as a consumer within the meaning of the Australian Consumer Law, you may have certain rights and remedies (including, without limitation, consumer guarantee rights) that cannot be excluded, restricted or modified by agreement.
(b) Nothing in this clause 16 operates to exclude, restrict or modify the application of any implied condition or warranty, provision, the exercise of any right or remedy, or the imposition of any liability under the Australian Consumer Law or any other statute where to do so would:
(i) contravene that statute; or
(ii) cause any term of this agreement to be void,
16.2 Exclusion of implied obligations
Except in relation to obligations outlined in clause 16.1, all conditions, warranties, guarantees, rights, remedies, liabilities or other terms that may be implied by custom, under the general law or by statute are expressly excluded under this agreement.
16.3 Limitation of liability
(a) Except in relation to Non-excludable Obligations, our liability to you arising directly or indirectly under or in connection with this agreement or the performance or non-performance of this agreement and whether arising under any indemnity, statute, in tort (for negligence or otherwise), or on any other basis in law or equity is limited as follows:
(i) we will have no liability whatsoever to you for any loss, harm, damage, cost or expense (including legal fees), or in the nature of special, indirect or consequential loss or damage (including, without limitation, loss of profit or revenue, economic loss, loss of goodwill, loss of customers, loss under or in relation to any other contract, loss of capital, downtime costs, loss of or damage to reputation, loss of opportunity, loss of anticipated savings or benefits, loss of production, production stoppage or loss of data or use of data) or other claims for consequential compensation incurred by or awarded against you in relation to the Services or under or in any way connected with this agreement; and
(ii) the aggregate of our liability to you is otherwise limited to an amount not exceeding the Service Charges paid by you under this agreement.
(b) In relation to Non-excludable Obligations (other than a guarantee as to title, encumbrances or quiet possession conferred by the Australian Consumer Law), except for goods or services of a kind ordinarily acquired for personal, domestic or household use or consumption (in respect of which our liability is not limited under this agreement), our liability to you for a failure to comply with any Non-excludable Obligation is limited to:
(i) in the case of services, the cost of supplying the services again or payment of the cost of having the services supplied again; and
(ii) in the case of goods, the cost of replacing the goods, supplying equivalent goods or having the goods repaired, or payment of the cost of replacing the goods, supplying equivalent goods or having the goods repaired.
17.1 Termination for non-payment
In the event any invoice issued pursuant to clause 9(c) is outstanding after the due date, we are entitled to terminate this agreement at any time during the term of this agreement at which that invoice remains outstanding.
17.2 Termination for cause
Either party may terminate this agreement immediately by notice in writing if the other party:
(a) breaches any term of this agreement that is not capable of remedy;
(b) breaches any term of this agreement that is capable of remedy and fails to rectify that breach within 14 days of receiving a notice from the other party requiring it to do so; or
(c) suffers an Insolvency Event.
17.3 Rights and obligations on expiry or termination
On the date of expiry or effective termination of this agreement:
(a) the licence granted under clause 4.1 terminates;
(b) you must immediately cease using (and must procure that all of your Users immediately cease using) the Services and Documentation;
(c) each party's right to use and disclose the other party's Confidential Information ceases and, in relation to Smiling Mind's Confidential Information, you must, at our option, return it to us or destroy it (and certify its destruction to us by notice in writing); and
(d) you acknowledge and agree that we may terminate Users' access to the Services.
18. Force majeure
(a) The non-performance or delay in performance by a party of any obligation in this agreement is excused during the time and to the extent that such performance is prevented by a circumstance or event beyond its reasonable control (Force Majeure Event), provided that the party affected by the Force Majeure Event uses all reasonable endeavours to perform as soon as possible its obligations under this Agreement (including by the use of reasonable workarounds and interim measures).
(b) This clause 18 does not apply to any obligation to pay money.
19. Dispute resolution
19.1 No court proceedings unless procedure followed
The parties agree to submit to binding arbitration, rather than court proceedings (except proceedings seeking interlocutory relief), in accordance with this clause 19.
The parties must attempt to resolve any dispute, difference of opinion or question arising out of this agreement (Dispute) by referring the Dispute to suitable representatives and engaging in good faith negotiations.
19.3 Mediation if procedure fails
If the parties cannot resolve the Dispute under clause 19.2 within 10 Business Days (or such longer period as agreed between the parties) after the Dispute is referred to them, then the parties must proceed to mediation in accordance with clause 19.4.
(a) The mediator must be jointly nominated by the parties within five Business Days of the end of the period set out in clause 19.3. In the absence of agreement between the parties, the mediator is to be nominated by the President for the time being of the Law Institute of Victoria (or her or his nominee).
(b) Subject to the availability of the mediator, the parties must meet with the mediator within five Business Days of the appointment of the mediator.
(c) The mediator will have authority to determine the procedure and timetable for any exchange of documents and any other information, procedural rules and such other steps as may seem appropriate to the mediator for the better resolution of the Dispute.
(d) The parties acknowledge that the purpose of any exchange of information or documents or the making of any offer of settlement is to attempt to settle the Dispute between the parties, and no party may use any information or documents obtained through the dispute resolution process established by this clause 19 for any purpose other than an attempt to settle such Dispute.
(e) The mediator will not have the power to bind the parties to any determination, but will seek to have the parties resolve the Dispute by agreement.
19.5 Release if other party breaches
If a party breaches this clause 19 in relation to a Dispute, the other party need not continue to comply with this clause 19 in relation to that Dispute.
19.6 Obligations continue
The parties must continue to perform their respective obligations under this agreement pending the resolution of a Dispute.
Each party must pay its own costs of complying with this clause 19.
20. Notices and other communications
(a) A notice, demand, consent, approval or communication under this agreement (notice) must be:
(i) in writing, in English and signed by a person duly authorised by the sender; and
(ii) hand delivered or sent by prepaid post or email to the recipient's address for notices, as varied by any notice given by the recipient to the sender.
(b) A notice given in accordance with paragraph (a) takes effect when taken to be received (or at a later time specified in it), and is taken to be received:
(i) if hand delivered, on delivery;
(ii) if sent by email, at the time and date at which the sender's email system records that the email was successfully delivered to the recipient without receipt of a delivery failure message; or
(iii) if sent by prepaid post, on the third Business Day after the date of posting (or on the seventh Business Day after the date of posting if posted to or from a place outside Australia),
but if the delivery, receipt or transmission is not on a Business Day or is after 5.00pm on a Business Day, the notice is taken to be received at 9.00am on the next Business Day.
(a) We may vary this agreement, a Digital Product and/or the Services from time to time by notice in writing to you. If the change is likely to:
(i) benefit you or have a neutral or minor detrimental impact on you, the change will be effective upon such notification; or
(ii) have a significant detrimental impact on you, the change will be effective 10 days after we notify you.
(b) If you do not accept a change made by us pursuant to paragraph (a), you may terminate this agreement by notice in writing to us to that effect (in which case you and your Users must immediately cease using the Services and we will not be required to provide any further Services).
(a) Neither party may assign any of its rights or purport to novate any of its obligations arising out of this agreement to a third party without the other party's prior written consent.
(b) Each party must pay its own costs of negotiating, preparing and executing this agreement.
(c) Any indemnity or any obligation of confidence under this agreement is independent of, and survives termination of, this agreement. Any other term by its nature intended to survive termination of this agreement survives termination of this agreement.
(d) This agreement may be executed in counterparts. All executed counterparts constitute one document.
(e) The rights and obligations of the parties under this agreement do not merge on completion of any transaction contemplated by this agreement.
(f) Each party must do, at its own expense, everything reasonably necessary (including executing documents) to give full effect to this agreement and any transaction contemplated by it.
(g) A provision or part of a provision of this agreement that is illegal or unenforceable may be severed from this agreement and the remaining provisions or parts of the provisions of this agreement continue in force.
(h) 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 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.
(i) Except where this agreement expressly states otherwise, it does not create a relationship of employment, trust, agency or partnership between the parties.
(j) We hold the benefit of each indemnity, promise and obligation in this agreement that benefits us or our Personnel on our own behalf and on trust for our related bodies corporate and Personnel.
(k) This agreement is governed by the law of Victoria, Australia and each party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts of Victoria, Australia.
(l) The documents listed in clause 2.1 constitute the entire agreement between the parties in connection with its subject matter and supersede all previous agreements or understandings between the parties in connection with its subject matter.