1. The software
1.1 Subject to these terms ish grants the User a non-exclusive, non-transferable limited licence to:
use the 'Community' version of the Product; and
use any other version of the Product, for the time as limited by the subscription, after payment by the User of the corresponding fee specified in ish's published rate card (Paid Version).
1.2 In these terms:
Product means the "ish onCourse" software product; and
Services means any services provided by ish to which the User has agreed to subscribe, such as support services, credit card and SMS processing services, student and tutor portals or website hosting services; and
User means you, your organisation and any third party contractors to whom you reasonably delegate responsibilities relating to the Product or Services, where those contractors agree to be bound by these terms; and
Subscription means the 12 month period commencing on the date a Paid Version of the Product or a Service is made available to the User, and each successive 12 month period in which the User does not cancel the renewal as per 1.13.2.
How the Product may be used
1.3 The User must:
comply and use the Product in accordance with the Product documentation published by ish;
not sublicense or otherwise permit any third party to use or access the Product; and
not attempt to reverse engineer any part of the Product, or directly or indirectly allow anyone else to do so; and
maintain and regularly verify comprehensive backups of all the data stored in the Product.
1.4 The User may use and reproduce documentation related to the Product and Services provided to it by ish solely for its internal business purposes.
1.5 Except to the extent permitted by Division 4A of the Copyright Act 1968 (Cth) or otherwise as expressly permitted by these terms, the User must not reproduce, modify, adapt, translate or create derivative works based on the Product. The User may make unlimited copies of the Product for backup, training and testing purposes.
1.6 If ish provides Services to the User which involve the use of ish's servers or other equipment, the User must comply with ish's applicable policies from time to time, provided the User has been given adequate notice of those policies.
Updates and upgrades
1.7 ish may offer a new version of the Product which has been produced primarily to:
rectify a problem found in a previous version of the Product (Minor version); or
extend, alter or improve the Product by providing additional functionality or performance enhancement (Major version).
1.8 ish may charge an additional fee for the use of new functionality introduced by a new version.
1.9 The User is not obliged to accept any new version of the Product offered by ish.
1.10 The User should perform User Acceptance Testing (UAT) before installing each version of the Product (for the first time or subsequently) to ensure that the Product meets the requirements of the User and to identify any potential issues.
1.11 ish is only obliged to provide Services to the User in respect to the current version of the Product and the immediately prior Major version. ish may require the User to install the latest Minor version in order to continue receiving Services.
1.12 ish may alter, remove or exchange Services from time to time providing that the User suffers no material disadvantage. The User may be offered a reasonable period in which to perform UAT and report any problems with the changes, after which the User will accept the changed Services.
2. ish's warranties and obligations
2.1 ish will use reasonable endeavours to comply with the service levels specified in the rate card and associated Service Level documentation in relation to the corresponding Services.
2.2 ish warrants that it will, in the provision of the Services, exercise due care and skill ordinarily exercised by IT professionals performing substantially similar services at the same time.
2.3 To the extent permitted by law, no other representation, warranty, condition or other term, express or implied, as to the quality or nature of the Services is given or accepted by ish and all such representations, warranties, conditions and other terms are excluded.
2.4 ish does not warrant that the Product will be free from defects or errors. Ish recommends that the User perform user acceptance testing before using any version of the Product.
2.5 The 'Community' version of the Product is provided "as is" and ish gives no warranty as to its use or performance nor as to the results generated by the Product.
Annual subscription (if the User purchases a Paid Version)
3.1 ish may charge fees for a Subscription by monthly instalments. The contract period is 1 year and the User agrees to pay for the full contract period the fees as agreed at the start of the Subscription.
3.2 The subscription is automatically renewed for another 12 months unless the User notifies ish at least 1 month before the expiry of the subscription (Renewal Date) that it does not wish to renew it.
3.3 ish will not increase fees and and other charges payable by the User during the Subscription. ish must provide the User with notice to increase those fees or charges at least 3 months prior to the commencement of a renewed Subscription.
3.4 The User may pay 12 months of Subscription fees in advance, at a rate as determined by ish. Upon receipt of payment in full, the Subscription Renewal Date is reset to the end of this new 12 month period, notwithstanding any previous Renewal Date.
3.5 Where ish's fees are payable in advance they are non-refundable.
3.6 Invoices must be paid within 30 days of issue. (Due Date)
3.7 If a correctly calculated invoice is not paid by the Due Date:
the User must pay interest at the Default Rate on that sum from the Due Date until the date of payment. Interest is to be calculated on a daily basis and capitalised monthly. In this clause Default Rate means 5% per annum above the rate set by the Reserve Bank Official Cash Rate on the first business day following the due date;
ish may: immediately suspend or restrict the User's use of the Product and the provision of any Services; and
all the instalments for the remainder of any Paid Version will become immediately due and payable.
3.8 Unless otherwise specified, all amounts referred to in these terms or ish's rate card are exclusive of any GST.
3.9 Where a party makes a taxable supply (Supplier) to another party (Recipient), the Recipient must pay to the Supplier an additional amount equal to the GST, payable at the same time as the payment for the supply, subject to the Recipient receiving a tax invoice.
3.10 Except to the extent stated otherwise, all ish fees includes all taxes, duties and other government levies, fees and charges (other than GST) that are imposed in relation to these terms, the Product or the Services.
4. Privacy, intellectual property and confidentiality
4.1 ish and the User will comply with all applicable privacy and data protection laws and regulations.
4.2 The User will not enter data into the Product or otherwise provide data containing personal information unless the person to whom the data relates has consented to:
that disclosure; and
the use of that information by ish for the purpose for which it was disclosed, to enable ish to fulfill its obligations under these terms.
4.3 Nothing in these terms affects the ownership of the User's student, course and other data (User Data), which ish acknowledges remains with the User.
4.4 The User grants to ish a non-exclusive, royalty free, non-transferable licence to use the User Data only for the purposes of fulfilling its obligations under these terms.
4.5 ish acknowledges that the User Data is the User's confidential information and ish will not disclose or use that information for any purpose other than for the purpose of fulfilling its obligations under these terms and for the improvement of and development of the Product, conducted internally by ish. If ish becomes aware of any unauthorised access to any User Data, it must promptly notify the User.
4.6 The intellectual property rights subsisting in and relating to the Product and ish's technical and other information and materials provided to the User (IP) remain the sole property of ish at all times.
4.7 If the User suspects or becomes aware of any infringement or threatened infringement of the IP, it must promptly notify ish in writing.
Duty to preserve confidentiality
4.8 The Product and ish's technical and other information and materials provided to the User include trade secrets and proprietary know-how belonging to ish and are made available to the User in confidence and solely on the basis of a confidential relationship. The User must not disclose that information to any other person or use it for any purpose other than as contemplated by these terms.
4.9 ish represents and warrants that to the best of its knowledge no intellectual property of any persons is or will be infringed by any Paid Product or Service, or the User using any Product or the results of any Service according to these terms.
5.1 To the maximum extent permitted by law, in no circumstances will ish be liable to the User or any third party for any direct, indirect, consequential, special, exemplary or incidental damages, for any lost profits, savings or goodwill or for loss or corruption of data, whether in contract, tort (including negligence) or otherwise.
5.2 To the extent that a mandatory warranty is implied by, or a mandatory consumer guarantee applies under, consumer protection laws, then to the maximum extent permitted by law, ish's liability for breach of the warranty or guarantee is limited, at ish's option to:
in the case of goods including the Product, either replacement or repair of the goods or payment of the cost of replacing or repairing the goods; and
in the case of services, to either resupply of the services or the cost of the resupply of the services.
5.3 Notwithstanding any other term in these terms, ish's total aggregate liability under or in any way connected with these terms whether in contract, tort (including negligence) or otherwise, is limited for any liability incurred during a year, to the sum of amounts paid to ish in connection with these terms, in that year.
Termination for breach
6.1 ish may terminate the licence granted under these terms immediately by notice if:
the User uses the Product in breach of these terms, or
if a correctly calculated invoice is not paid by the Due Date.
6.2 ish may, by 6 months' notice to the User, terminate these terms, in which case it must refund the User on a pro rata basis, all annual subscription fees paid by the User for the period during which the Services were not provided.
Effect of termination
6.3 Each party must, at its own expense, destroy all information (including all Products and materials whether embodied in tangible or intangible form) regarding or belonging to the other party that was provided to it in performance of the obligations under these terms.
6.4 Termination of these terms will not affect the accrued rights or remedies of either party under this Agreement, including the right to obtain payment from the other party in respect of any fees and charges that are already due and payable by the other party at the time of termination.
7.1 A party will not be liable to the other if performance of its obligations to the other party (other than an obligation to pay money) is delayed, impeded or prevented by any act or event beyond the control of a party, whether foreseen or not, which delays, interrupts or prevents such party from performing its obligations under these terms.
7.2 Notices under this agreement must be given in writing and, in the case of ish, may be instead given by both posting the information on ish's website and sending an email to a contact nominated from time to time by the User.
Variation to these terms
7.3 ish may, by 3 months notice, vary these terms or pricing in any rate card and the new terms or pricing will take effect upon renewal of any Subscription by the User.
Assignments and transfers
7.4 A party must not assign or transfer any of its rights or obligations under these terms without the prior written consent of the other.
Governing law and jurisdiction
7.5 These terms are governed by the law of New South Wales and the parties submit to the non-exclusive jurisdiction of its courts. The parties will not object to the exercise of jurisdiction by those courts, either for forum non conveniens or on any other basis.
7.6 If a clause or part of a clause can be read in a way that makes it illegal, unenforceable or invalid, but can also be read in a way that makes it legal, enforceable and valid, it must be read in the latter way. If any clause or part of a clause is illegal, unenforceable or invalid, that clause or part is to be treated as removed from these terms, but the rest of these terms are not affected.
7.7 In these terms:
a reference to a party includes that party's administrators, successors and permitted assigns;
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;
an expression importing a natural person includes any company, trust, partnership, joint venture, association, body corporate or governmental agency;
words expressed in the singular include the plural and vice versa; and
the words 'include', 'including', 'for example' or 'such as' are not to be interpreted as words of limitation, and when such words introduce an example, they do not limit the meaning of the words to which the example relates, or to examples of a similar kind.