- Purpose and acceptance
- The purpose of this Agreement is to specify the rights and obligations of Xap Technologies Pty Ltd (ACN 169 623 009) (we, us or our) and the user of the Platform (you or your) in relation to your access to, and use of the:
- Platform; and
- By using the Platform, you agree to be bound by this Agreement. If you do not wish to accept the terms of this Agreement, you must not use, or must immediately cease using, the Platform.
- Your use of the Platform is deemed to be your acceptance of this Agreement.
- By agreeing to the terms of this Agreement, you warrant that you have the capacity to enter into a legally binding contract.
This Agreement commences on the Commencement Date and terminates in accordance with the terms of this Agreement.
- Your obligations
3.1 Access to Platform
- You must provide information to us that is true, accurate and not misleading or deceptive. If such information changes, you must promptly notify theChildcare Provider that authorised your access, or use of the Platform.
- At all times during the Term, you must (at your cost):
obtain and maintain all hardware, software and communications equipment necessary for you to access and use the Platform, and ensure that they comply with applicable specifications and guidelines set out in the Documentation or otherwise communicated to you from time to time;
comply with all Relevant Laws; and
comply with all of our reasonable directions, policies and guidelines as notified from time to time.
3.2 Access restrictions
During the Term, you must not access, store, distribute or transmit:
- any viruses, worms, trojans, malicious code or similar harmful materials; or
- any material, data or content that:
is unlawful, unethical, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive or a contravention of the rights of any Third Party;
facilitates illegal activity;
causes damage or injury to any person or property; or
corrupts, degrades, disrupts or discredits the operation or functionality of the Platform.
3.3 Use restrictions
You must not do, attempt to do or assist any Third Party to do any of the following:
- adapt, alter, copy, create derivative works from, disassemble, display, distribute, download (except with our written consent), duplicate, frame, mirror, modify, reduce to human readable form, republish, reverse compile, reverse engineer or transmit all or any portion of the Platform by any means;
- infringe our Intellectual Property;
- assign, license, transfer any rights in, or otherwise commercially exploit, the Platform; or
- engage in illegal behaviour or any the following:
unauthorised access to or use of data, services, systems or networks, including any attempt to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without express authorisation of the owner of the system or network;
interference with service to any user, host or network, including mail bombing, flooding, deliberate attempts to overload a system and broadcast attacks;
use of an internet account or computer without the owner’s authorisation; and
collecting information by deceit, including internet scamming, password robbery, phishing, security hole scanning and port scanning.
3.4 Competing product
- You must not develop, attempt to develop, or assist a Third Party to develop, a product, service or platform that competes with the Platform.
- You acknowledge that clause 4(a)is a usual covenant within our field of activities and is reasonably necessary to protect our legitimate business interests.
- Our obligations
4.1 Service obligations and exclusions
- During the Term, we must provide the Services to you.
- The obligation under clause 1(a)will not apply in the event of:
any non-conformance which is caused, or contributed to, by use of the Platform contrary to our instructions or the terms of this Agreement;
modification or alteration of the Platform by any party other than us;
the unsuitability or malfunction of the network, systems, computer hardware or software being used or accessed by you; or
a Force Majeure Event.
4.2 Modification and discontinuance of the Service
- We may add, modify or discontinue any functionality, feature or any other aspect of the Services, including in relation to the Platform, at our discretion and without further notice.
- We are not liable for any Loss suffered by any person, including you, arising from, or in connection with, any modification or update to the Platform that was made by a person other than us.
- Third Party providers
- Your access to the Platform may enable you to use, access or otherwise integrate with Third Party Products.
- We make no representations, and will have no liability or obligation whatsoever, in relation to the Third Party Products.
- We do not endorse, sponsor or approve any Third Party Products made available via the Platform. It is your sole responsibility to determine that specific products or services, introduced or used by you meet your needs and are suitable for the purposes for which they are used.
- Any rights you may have to access Third Party Products will be limited to the:
- extent of our ability to license such rights to you; or
- relevant Third Party Product usage terms or licence.
- Intellectual Property and licences
- Nothing in this Agreement assigns, transfers or grants any right, title or interest in or to a party’s Intellectual Property, other than as expressly stated in this Agreement.
- You acknowledge and agree that we own all Intellectual Property subsisting in, or otherwise underlying, the Platform and the Documentation.
- You must only submit, publish or upload any User Data onto the Platform in accordance with this Agreement.
6.2 Licence for Platform
We grant you a non-exclusive, personal, non-transferable and non-sub-licensable licence to access and use the Platform and Documentation, during the Term solely:
- if you are a Guardian, for your personal use; or
- if you are a Personnel, for the internal and ordinary business purposes of the Childcare Provider.
6.3 Usernames and passwords
- The Childcare Provider will authorise you to use the Platform by providing you with a username and password (Credentials), which must not be shared with any other person for any reason whatsoever.
- You must ensure you change your password:
- promptly after being issued with the Credentials; and
- on a regular basis during the Term.
- You acknowledge that you are solely responsible for:
- maintaining the confidentiality of your Credentials; and
- all access and use of the Platform that results from any person using the Credentials.
6.4 Licence for User Data
You grant us a worldwide, non-exclusive, royalty-free, transferable licence to use, disclose, reproduce, store, distribute, publish, export, adapt, edit, translate, produce derivative works from or copy the User Data during the Term for the following purposes:
- enabling us to perform our obligations and exercise our rights under this Agreement, or any agreement we have with the Childcare Provider;
- using usage patterns, trends and other statistical or behavioural data derived from use of the Platform for the purposes of providing, operating, maintaining, or improving the Services or any of our products and services;
- sharing the User Data with a Third Party for the purposes of performing or improving the Services(eg a direct debit provider for processing fees paid to the Childcare Provider); and
6.5 Personal information in User Data
- By using the Platform and providing any Personal Information, you:
- consent to such processing; and
- warrant on a continuing basis that all information provided is true and accurate
- Confidential Information You must:
- keep our Confidential Information strictly confidential; and
- not, before or after this Agreement has terminated, make any independent use of, disclose, communicate or publish to anyone else any of our Confidential Information, unless that disclosure or use is required by law.
8.1 Non-excludable Obligations
- 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 rights in relation to consumer guarantees) that cannot be excluded, restricted or modified by agreement.
- Nothing in this Agreement operates to exclude, restrict or modify the application of any condition, warranty or provision implied by law, 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:
- contravene that statute; or
- cause any term of this Agreement to be void,
8.2 Exclusion of liability
Except in relation to Non-excludable Obligations:
- we will not be liable to you or any other person for any Consequential Loss for breach, or otherwise suffered as a result, of this Agreement;
- all risk associated with use of the Platform remains with you; and
- our maximum aggregate liability (including legal costs incurred in defending a Claim) arising from, or in connection with, this Agreement is limited to $500.
8.3 No warranties or guarantees
Except in relation to Non-excludable Obligations:
- all conditions, warranties, guarantees, rights, remedies, liabilities or other terms that may be implied or imposed by custom or law are expressly excluded under this Agreement; and
- we make no representations, warranties or guarantees in relation to the availability, continuity, reliability, accuracy, currency or security of the Platform.
- Either party may terminate this Agreement immediately (without any liability) at any time by giving the other party notice.
- Upon termination of this Agreement, all licences and rights of access granted under this Agreement will immediately terminate.
- Force Majeure Event We will have no liability to you or any other person if we are prevented from or delayed in performing our obligations under this Agreement by a Force Majeure Event.
A notice, agreement, consent, direction, waiver, or similar given or required under this Agreement must be in writing and in English.
11.2 Electronic communication
The parties consent to giving and receiving notices electronically, and this Agreement may be executed and delivered electronically, in accordance with the Electronic Transactions (Victoria) Act 2000 (Vic).
11.3 No waiver
A waiver of a right, power or remedy must be signed by the party giving it and cannot be implied by conduct, delay or failure to act.
- You may not assign or deal with this Agreement except with our prior consent. We are not required to give consent or justify the withholding of consent.
- We may deal with any of our rights or obligations under this Agreement without your consent.
If any part of this Agreement is or becomes invalid or unenforceable under any Relevant Law, it is severed in the relevant jurisdiction but only to the extent it is invalid or unenforceable.
11.6 No merger
On completion or termination of this Agreement, the rights and obligations of the parties set out in this Agreement will not merge and survive after termination or completion.
11.7 Remedies cumulative
Except as provided in this Agreement and permitted by any Relevant Law, the rights, powers and remedies provided in this Agreement are cumulative with and not exclusive to the rights, powers or remedies provided by any Relevant Law independently of this Agreement.
11.8 Entire agreement
This Agreement constitutes the entire agreement between the parties in relation to, and supersedes any prior conduct, arrangement, agreement or understanding of, its subject matter, whether written, oral or partly written and partly oral.
11.9 Governing law and jurisdiction
- This Agreement is governed by the laws in force in Victoria, Australia.
- Each party irrevocably submits to the exclusive jurisdiction of courts exercising jurisdiction in Victoria, Australia and waives any right to claim that those courts are an inconvenient forum.
Definitions and interpretation
Agreement means this document and all documents and policies referred to in this document.
Australian Consumer Law means the Competition and Consumer Act 2010 (Cth) Schedule 2.
Childcare Provider means a childcare centre operator that has a licence to use the Platform and Documentation pursuant to an agreement with us.
Commencement Date means the date both parties have agreed to enter into this Agreement, beingthe date you first sign into the Platform.
Confidential Information means all information of a confidential, commercially sensitive or valuable nature including Intellectual Property of a party, financial, sales, customer, employee or supplier information, processes, statements, trade secrets, marketing plans, data, other than information that is public or information previously disclosed to the receiving party on a non-confidential basis.
Consequential Loss means any of the following:
- incidental, special, remote or unforeseeable loss or damage;
- loss of revenue, profit, income, bargain, opportunity, use, production, business, contract, goodwill, or anticipated savings, loss, damage or corruption of data, loss caused by business interruption, or the cost of obtaining new financing or maintaining existing financing;
- costs incurred to prevent or reduce loss or damage which otherwise may be incurred or suffered by a Third Party; or
- loss or damage set out above in paragraphs (a) to (c) that is incurred or suffered by or to a Third Party.
Credentials has the meaning in clause 3.
Documentation means the manuals, user guides and other documents made available to you by us relating to the Services, including any updates, replacements, revisions and additions to such documentation, provided or made available by us from time to time.
Feature Release meansa release of the Platform which adds features or functionality to, or otherwise amends or improves, the Platform, but which does not constitute a Maintenance Release or New Module.
Force Majeure Event means an act, event, omission or accident beyond a party’s reasonable control, including strikes, lock-outs or other industrial disputes, failure of a utility service or transport or telecommunications network, act of God, fire, flood, storm, earthquake, other physical natural disaster or extreme weather conditions, or any other weather conditions which would be expected to place at risk the health or safety of the employees of a party or any other person, sabotage, war, riot, civil commotion, acts of terrorism or hostilities, a quarantine, epidemic, pandemic, outbreak or recurrence of a contagious disease or virus (including COVID-19), or any derivative or mutation of such viruses or disease, or the threat or perceived threat of any of these, computer hacking, malicious damage, compliance with any law or governmental order, rule, regulation or direction, a state of emergency has been declared by an authority, accident, breakdown of plant or machinery or default of hosting or data centre providers or other suppliers or sub-contractors and shortage of supplies, equipment and materials.
Government Agency means any governmental, judicial or statutory body with authority or jurisdiction over this Agreement or a party.
Guardian means a person that consumes the childcare services of the Childcare Provider.
Intellectual Property means the business names, copyright, patents, trade marks, trade names, designs and similar industrial, commercial and intellectual property and all other rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields anywhere in the world, regardless of the form and whether or not registered or registrable.
Loss means any liability, loss, injury, illness, damage, cost or expense, including legal costs on a full indemnity basis and Consequential Loss.
Maintenance Releasemeans a release of the Platform which fixes bugs, resolves issues and improves system performance, but which does not constitute a Feature Release or a New Module.
New Module means a self-contained grouping of functionality that represents new and material functionality not previously contained within the current version of the Platform, for which additional fees are payable by the Childcare Provider.
Personal Information has the meaning in the Privacy Act 1988 (Cth).
Personnel means a director, officer, employee, contractor, agent or authorised representative of the Childcare Provider.
- the downloadable and/or non-downloadable software operated, or licensed, by us and promoted by reference to the name ‘XAP 2.0’ or any other name updated from time to time, and used for the purpose of carrying out tasks related to the management and operation of childcare centres, including the application, database, system and server software;
- any Maintenance Releases and Feature Releases;
- any New Modules (to the extent that the Childcare Providerhas chosen to pay for them); and
- all Intellectual Property contained in the above.
Relevant Law means any law, regulation, mandatory guideline or standard, ordinance, court ruling or requirement or direction of a Government Agency, or similar, in any jurisdiction in which any part of this Agreement is performed, or governing the Services or a party to this Agreement at any time.
- granting access to the Platform and the Documentation to you in accordance with this Agreement; and
- any incidental services provided by us as we deem necessary to provide.
Term has the meaning given in clause 2.
Third Party means a party other than a party to this Agreement.
Third Party Product means any software, product, service or material (including any related Intellectual Property) provided by a Third Party.
User Data means all data, content, works and materials:
- uploaded or submitted to or stored on the Platform, or otherwise made available, by you;
- transmitted by the Platform at the instigation of you;
- supplied by you to usfor uploading to, transmission by or storage on, or via, the Platform; or
- generated by the Platform because of the use of the Services by, or an act or omission of, you.
In the interpretation of this Agreement, unless stated otherwise:
- a reference to a party is to a party to this Agreement;
- a reference to a person includes a natural person or legal entity;
- a reference to time is a reference to time in Melbourne, Victoria;
- words such as ‘including’ or ‘for example’ do not limit the preceding words;
- all grammatical forms of defined terms have a corresponding meaning;
- a provision of this Agreement must not be construed against a party on the basis that party was responsible for preparing it; and
- the main body of this Agreement will prevail to the extent of any inconsistency with any other part of this Agreement.