Last updated: September 5, 2018
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 Services by Stile Education Pty Ltd (Agreement).
By installing, accessing or using the Services
or any of the content made available via the
Services, the Customer agrees to comply with the
obligations set out in this Agreement.
It is agreed that:
1 Definitions
Business Day means any day
except a Saturday, Sunday, public holiday or
bank holiday in the Melbourne, Victoria.
Commencement Date means the
date the Services are to commence as set out in
the Subscription.
Customer, "you" and "your"
refer to you, the purchaser of the 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 Service by
or from a User.
Fees means the fees payable for
the Services as set out in your Subscription.
Initial Subscription means the
initial subscription term set out in your
Subscription.
Intellectual Property Rights
means:
-
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);
-
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
-
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.
Library means the functionality
in the Service permitting teachers to share
subjects and lessons including Customer Data and
User Content.
Personal Information has the
meaning given in the Privacy Act 1988
(Cth).
Services means the provision of
access to Stile’s interactive e-learning tools,
curriculum and content to you via the Stile
Platform. Services include a site licence to
access and use
Cosmos Magazine Online.
Stile, "we", "us", or “our"
refers to Stile Education Pty Ltd.
Stile Library means the content
feature within the Stile Platform where we
publish lesson materials and other content as
part of the Services.
Stile IPR means all
Intellectual Property Rights subsisting in the
Stile Platform, Stile Library or any Stile
website, and includes without limitation all
Intellectual Property Rights (including software
source code and any information stored in the
Stile Library and Stile Toolset), exclusive of
any Customer Data or User Content.
Stile Platform means our
cloud-based, online, interactive e-learning tool
and curriculum builder.
Stile 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 Service.
Term means the term of the
Services as set out in the Subscription.
User means a teacher engaged by
your training or educational organization, a
student or other person authorised to use the
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).
2 Licence and Access
2.1 Licence
Subject to the Customer paying the Fee, Stile
will provide access to the Services to the
Customer and its Users. During the Term, Stile
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.
2.2 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.
2.3 Provision of information
The Customer must supply Stile 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.
2.4 Limited use
Unless Stile 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 2.1. 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 Stile.
2.5 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 Stile Platform or your
use of the Services.
2.6 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 Services.
3 Payment and Invoicing
3.1 Payment of Fees
-
The Customer must pay Stile 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 Services.
-
Invoices issued under clause 6.1(c) are due
within [14] days of the date of invoice.
-
Timely payment of each invoice is an
essential term of this Agreement.
-
Where applicable, the Customer must pay, in
addition to the Fees, any GST levied or
imposed upon Stile as a result of the
provision of the 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.
-
Unless the Customer has agreed a 3 year
Subscription which fixes Fees for that
Initial Subscription term, Stile may
increase Fees at renewal under clause 11.1.
Stile will notify the Customer of any
applicable Fee increase in advance of the
renewal Term commencing.
3.2 Overdue amounts
If any amount payable to Stile under this
Agreement has not been paid by the Customer by
the due date for payment, Stile may:
-
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 Stile 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 Stile);
-
suspend performance of this Subscription (in
part or in full) until the amount
outstanding is paid in full; or
- terminate the Subscription.
3.3 Additional rights
The exercise by Stile of any of its rights under
clause 3.2 does not affect:
-
the Customer’s obligation to pay any money
due and payable; or
-
any other rights or remedies Stile may have
in relation to any failure by the Customer
to pay an amount due,
under this Subscription or any other agreement
between Stile and the Customer.
4 Availability, Outages and Interruptions
-
We make every effort to ensure the Service
is available 24 hours a day, 7 days a week.
Stile may undertake maintenance activities
which are in its reasonable opinion
necessary to properly provide, or to
facilitate improvements to, or maintenance
of, the Services.
-
Stile will use reasonable endeavours to
minimise the need for maintenance work
(Scheduled Maintenance) that
may cause disruption to Stile's ability to
provide the Services to the Customer. Stile
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.
-
Notwithstanding this clause 4 or otherwise,
Stile reserves the right to undertake
emergency maintenance in respect of the
Stile Platform or otherwise without
notification to the Customer. Where
reasonably able to do so, Stile will notify
the Customer prior to undertaking such
emergency maintenance.
-
Stile 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.
5 Intellectual Property Rights
-
The Customer acknowledges and agrees that
Stile owns and holds the Stile IPR and at no
time during the term of this Agreement or
after its expiry or termination, will the
Stile IPR transfer, assign or otherwise vest
in the Customer.
-
During the Term of this Agreement and at any
time after the Agreement expires or is
terminated:
-
the Customer must not use challenge,
interfere with or otherwise impede
Stile's ownership and use of the Stile
IPR;
-
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
Stile IPR;
-
the Customer must not engage in the
infringement of the Stile IPR by
hacking, reverse engineering or
otherwise duplicating the Stile IPR;
-
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
Stile Toolset; and
-
the Customer must not "frame" or
"mirror" any Stile Toolset on any other
server or wireless or Internet-based
device.
-
Subject to clause 8(e), Stile 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
Stile.
-
Stile has tools that allow you to publish
content (e.g. subjects, lessons, activities
etc.) to other Stile Platform Users via the
Library (User Content). When another User
downloads your User Content from the
Library, you grant them a limited licence to
access and use the User Content within their
own lessons. Whilst User Content can be
removed from the Library, a User may
continue to access and use any downloaded
copies of the User Content. Only lesson
content is shareable as User Content. You
acknowledge and agree to ensure no student
information, submissions or results are
included within User Content made available
to the Library.
-
All trademarks displayed on the Stile
Platform and forming any part of the
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 Stile Platform without the express
written permission of the relevant owner.
-
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.
-
You agree that your provision of feedback
regarding the Service does not give you any
Intellectual Property Rights or any other
right, title, or interest in or to the Stile
IPR. We have no obligation to incorporate
feedback into any product or service, and
you have no obligation to provide feedback.
6 Users
6.1 Maximum Users
-
You acknowledge that the Fee is set in
accordance with the maximum number of Users
permitted to access the Services under your
Subscription.
-
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.
-
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.
6.2 Student Number Variation
We understand that enrolment numbers at school
change, especially at the start of the school
year.
To accommodate, we’re happy to make reasonable
adjustments to the number of student Users you
purchase (within 10% of your total student
licences), up or down, within the first 2 months
of the school year.. Just let us know and we’ll
credit or debit your account accordingly.
6.3 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 Stile’s course
materials provided in the Service.
6.4 User Account Obligations
The Customer must ensure that:
-
each User complies with the applicable
Customer obligations under this Agreement;
and
-
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.
7 Customer obligations and warranties
-
At its own cost, the Customer must and where
applicable must procure that its Users:
-
provide their own facilities (including
computers, software and
telecommunications facilities) necessary
for accessing and utilising the
Services;
-
use the 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
Stile;
-
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;
-
not redistribute, copy, publish, sell,
alter, modify, tamper with, reverse
engineer, decompile, or disassemble the
Services, or any content generated by
Stile unless otherwise agreed by Stile;
-
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 2.1;
-
not use the Service to transmit
unsolicited advertising or spam to other
Users;
-
not use the Service to distribute
content to any person or entity that is
not a User unless otherwise allowable as
part of the Service;
-
not use the Service to store or
distribute illegal, harmful or malicious
material or link to websites containing
such material. You must not use the
Service in a way that breaches any law
or another person’s Intellectual
Property Rights;
-
not use the 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;
-
not to attempt to bypass security
controls or otherwise gain unauthorised
access to resources within the Service;
-
not to attempt to knowingly disrupt the
proper operation of the Service in any
way;
-
have appropriate policies and procedures
in place relating to unauthorised access
or misuse of Services; and
-
maintain the confidentiality of any
login name and password allocated to it
or the Users and not to disclose them to
any third party.
-
The Customer represents and warrants to
Stile that:
-
it has and will during the Term have the
legal right and authority to perform its
obligations as contemplated under this
Agreement;
-
it will use the Services only for lawful
purposes and in accordance with this
Agreement; and
-
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 Stile or
employed by the Customer in its use of
or receipt of the 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.
8 Customer Data and Privacy
-
The Customer is responsible for ensuring
that all the Customer Data and other
materials made available to Stile, 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.
-
The Customer warrants to Stile that the
provision of the Customer Data to Stile and
the use of it by Stile in accordance with
this Agreement complies with all applicable
laws, including but not limited to the
Privacy Act 1988 (Cth). The terms of Stile’s
privacy policy are incorporated and form
part of the Agreement. You can read Stile’s
privacy policy
here.
-
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 Services.
-
The Customer represents and warrants that it
has the necessary rights, licences,
clearances or consents needed to submit the
Customer Data to Stile.
-
The Customer grants a non-exclusive licence
to Stile for the Term to copy, store,
transmit, display, access and use Customer
Data to the extent reasonably necessary to
provide and maintain the Service for you.
-
Without limiting any other term of this
Agreement:
-
Stile 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;
-
Stile 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:
-
corruption, interference and loss;
and
-
unauthorised access, use,
modification, processing, disclosure
or other misuse, and to ensure that
only authorised Stile personnel have
access to the information.
-
The Customer may request Stile to remove
or destroy Customer Data held by Stile
at any time during or subsequent to this
Agreement, provided that Stile may
charge a fee for this service on a time
and materials basis. Stile retains
discretion as to the removal of data no
less than 14 days after the expiry of
the Agreement.
-
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.
9 Consent
The Customer acknowledges that Stile and its
third party service providers may communicate
with the Customer for the limited purpose of:
-
the Customer’s access and use of the
Services;
-
providing the Customer with news and
information about the Services;
-
responding to any specific request the
Customer makes of Stile;
-
administering and managing the Services, as
well as performing administrative and
operational tasks (including risk
management, systems development and testing,
and market or customer research);
-
notifying the Customer of any changes to,
enhancements of, Scheduled Maintenance or
outages that may affect the Services;
-
providing the Customer with the opportunity
to ‘opt-in’ to receiving promotional
material from time to time from Stile or its
services providers; and
-
providing the Customer with the opportunity
to ‘opt-in’ and provide its consent to
participate in enhancements to or new
features of the Services, through which
Stile may use information that is posted to
or uploaded by the Customer for the purposes
of enhancing the Customer’s use of the
Services.
10 Limitation of liability and indemnity
-
If Stile’s performance of its obligations
under this Agreement is for any reason
affected or delayed:
-
by the failure of the Customer to
comply with its obligations under
this Agreement;
-
due to the acts or omissions of the
Customer or any User;
-
by any factors beyond Stile’s
reasonable control including Force
Majeure; or
-
due to incorrect access or use of
the Services by Users or the
Customer,
then Stile's obligations shall be reduced to
the extent such events impact the access or
use of the Services, and the time for the
performance of Stile’s obligations under
this Agreement shall be extended by a
reasonable period having regard to such
failures, acts or omissions.
- The Customer agrees that:
-
Stile makes no representation or
warranty regarding the accuracy or
completeness of any data or information
contained in the Services (Information);
-
the Information does not purport to be a
complete database of all information in
Stile’s possession or control;
-
Stile 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 Stile to provide complete
or accurate Information;
-
Stile will not be liable to the Customer
for any loss or corruption of the
Customer Data for any reason including
our negligence; and the use of Customer
Data by third parties when shared using
the Library.
-
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:
-
the loss or damage is caused by or
relates to breach of contract, statute,
tort (including negligence) or
otherwise;
-
the possibility of such loss or damage
was foreseeable; or
-
Stile or any other person was previously
notified of the possibility of the loss
or damage.
-
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.
-
The financial cap in clause 10(d) does not
apply to:
- breaches of clauses 5 or 8;
-
fraud, wilful misconduct or negligence
by the first party, its employees,
contractors, suppliers, agents,
subcontractors or service providers; or
-
the extent that liability cannot be
limited by law.
-
Subject to this clause 10, reconstruction of
data lost or damaged due to Stile’s direct
acts or omissions in the course of supplying
Services will be at Stile’s cost provided
that Stile’s sole liability to the extent
permitted by law will be to restore that
data from the most recent backup copy.
-
The Customer indemnifies Stile for any and
all loss and damage (including legal fees)
arising out of or in connection to:
-
any breach of this Agreement by the
Customer or a User;
-
any breach of any applicable law, in
connection with your use of the Service;
-
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
Services, Customer Data or User Content;
and
-
any failure by the Customer to obtain a
consent necessary for Stile to provide
the Services.
11 Term and termination
11.1 Term and renewal
-
This Agreement commences on the Commencement
Date and will continue for the Initial
Subscription unless terminated earlier in
accordance with this clause 11.
Subscriptions are based on the school
calendar year and typically run from 1
January through to 31 December.
-
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
2018 and ends on 31 December 2018
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 2018. 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 2019. 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.
11.2 Termination
-
Either party may terminate this Agreement
immediately on written notice to the other
party if:
-
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
-
the other party fails to comply with a
material term of this Agreement which is
not capable of being remedied.
-
Stile may terminate this Agreement or
suspend the Customer’s access to the
Services immediately, by written notice to
the Customer, if the Customer:
-
is in breach of any obligations under
this Agreement; or
-
fails to pay Stile any amount that is
due and payable under this Agreement
within 7 days of written notice to the
Customer demanding payment.
-
In addition to its rights under clause 11.1
and 11.2, the Customer may terminate the
Agreement in writing without fault within
the first 30 days from the Commencement
Date.
11.3 Effect of expiry or termination
-
Upon expiry or termination of this
Agreement:
-
Stile will immediately cease the
provision of the Services;
-
Stile will issue to the Customer a final
tax invoice for all Fees due. Stile will
not refund any Fees to the Customer for
any Services provided up to the date of
termination;
-
each party must pay to the other party
all amounts owed by it in connection
with this Agreement, including under any
indemnities; and
-
the Licence will be immediately revoked
in accordance with clause 2.6.
-
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).
11.4 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 Service.
12 Force Majeure
-
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.
-
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.
13 Miscellaneous
13.1 Notices
Any notice, communication, consent or other
document authorised or required to be given or
served under this Agreement:
-
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
-
will be taken to have been duly given or
made:
-
in the case of delivery in person or
by post, when delivered at the
correct address;
-
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.
13.2 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.
13.3 Assignment
-
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 Stile.
-
Stile may assign or otherwise deal with any
of its rights and obligations under this
Agreement, without the prior written consent
of the Customer.
13.4 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.
13.5 Further Assurances
Each party must do all things necessary to give
full effect to this Agreement and the
transactions contemplated by this Agreement.
13.6 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.
13.7 Survival
Clauses 2, 3, 5, 7, 8, 10, 11.3, 12, this clause
13 and any other clauses that by their nature
are intended to survive expiry or termination of
this Agreement (including any clauses which are
necessary for the interpretation of those
clauses), survive expiry or termination of this
Agreement.
13.8 Governing Law
This Agreement is governed by the laws of
Victoria. 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.