LICENSING TERMS (ORGANISATIONS): Momentum Cloud Applications
1 Defined Terms
In these Terms and Conditions, a term or expression starting with a capital letter is defined in clause 20 has the meaning given to it in that clause.
2 Use of the Momentum Applications
(b) To use our Applications, you will need to register as an authorised user of the relevant Applications. You must provide us with accurate and complete registration information about you and your End Users and you must ensure that all information you provide us is true and accurate at all times. It is your responsibility to inform us of any changes to your registration information by emailing us.
(c) We will require each of your End Users to agrees to our end user licensing terms and conditions (End User Licensing Terms and Conditions). For clarity, we will not make available subscriptions to any of our Applications to an End User if that End User has not agreed to the End User Licensing Terms and Conditions.
(d) You must ensure that each End User complies all their obligations under the End User Licensing Terms and Conditions. You are liable to us for all the acts and omissions of your End Users as fully as if those acts and omissions were your own.
(e) Your End Users are permitted to access and use the relevant Application that you subscribe to including any extension or replacement of that Application for their own personaluse only, subject always to your compliance with these Terms and Conditions and their compliance with the End User Licensing Terms and Conditions.
(f) To use our Applications you will need to provide to End Users at your own cost, or require your End Users to provide at their cost, computer equipment and internet connectivity.
(g) All Content on and in an Application is owned by us and our licensors. The trademarks, trade names, logos, designs and other marks of Momentum Cloud Pty Ltd including, Momentum ESR, MGoals, Momentum EYLF, MyPlgoals and the Burraga Foundation, are trademarks of Momentum Cloud Pty Ltd and may not be used without our prior written approval. All other trademarks, trade names, logos, designs and other marks are the property of their respective owners.
(h) We grant you a limited, revocable licence (without the right to sub-licence any of the following rights) to view our Content through your subscribed Application. Our Applications are for your internal use only, and you agree to use our Applications in compliance with all applicable laws and regulations which may apply to your use of such Applications as well as any reasonable rules, guidelines or code of conduct which we may require you to comply with from time to time when using our Applications. Any other use of our Applications or our Contentis strictly prohibited and may:
(i) result in us exercising our right to terminate your access under these Terms and Conditions; and/or
(ii) subject you to civil and/or criminal liability.
(i) You must not modify, copy, distribute, transmit, broadcast, reproduce, publish, licence, create derivative works from, create hyperlinks to, deep link, frame, transfer or sell our Applications, any Content or services available on our Applications. All our Intellectual Property Rights and those of any third parties providing content to our Applications are fully reserved. If you require a licence to reproduce or hyperlink to our Applications or any Content, please email us. You must not attempt to obtain unauthorised access to any of our Applications or our computer systems or database records.
(j) You agree to use our Applications only on our provided platforms and not through any mirrored platform or other means. You further agree not to create or provide any other means through which others may use our Applications, for example, through server emulators. To the maximum extent permitted by law, you must not reverse engineer, decompile or disassemble the software comprising our Applications or any Contents or any software provided on one of our platforms or on our Applications, including any proprietary communications protocol used by our Applications or Software.
3 User Materials
(a) Our Applications may allow you, your End Users or other users of our Applications to submit messages and material (User Materials). You may only, and must ensure your End Users only, share or publish materials that are polite and which comply with the requirements of these Terms and Conditions. You are solely responsible (and liable) for your User Materials and your End Users’ User Materials which you or your End Users share or publish in, or using, our Applications. In particular, you agree you will not, and must ensure that your End Users do not, share or publish User Material in, or using, our Applications:
(i) in connection with surveys, contests, pyramid schemes, chain letters, junk emails or any other unsolicited correspondence, whether for a commercial purpose or otherwise;
(ii) that is defamatory, offensive, abusive, pornographic, profane or otherwise unlawful, including material that racially or religiously vilifies, incites violence or hatred, or is likely to insult or humiliate others based on race, religion, ethnicity, gender, age, sexual orientation or any physical or mental disability;
(iii) that would reflect negatively on us, including our goodwill, name and reputation;
(iv) that relates to unlawful conduct;
(v) that is false, misleading or deceptive;
(vi) that infringes the intellectual property or other rights of another person;
(vii) that contains financial, legal, medical or other professional advice;
(viii) which includes files that contain, or otherwise intentionally release or disseminate, viruses, Trojan horses, worms, time bombs, cancel bots, corrupted files, or any other similar software or programs that may damage our Applications, our Contents or our computer systems;
(ix) that aims to harvest or otherwise collect personal information about other individuals, including email addresses or screen names for the purpose of sending unsolicited emails or for exchange, or post personal information about another individual;
(x) that violates, or encourages others to violate, any laws or regulations or the legal rights of another individual;
(xi) that would breach any applicable laws; or
(xii) that would otherwise result in civil or criminal liability for you, us or any third party.
(b) You must follow all reasonable instructions of our Personnel in relation to your use of our Applications (including in relation to the rectification of bugs contained within our Applications).
(c) We have no obligation to monitor User Materials on our Applications. However, we may review and remove any User Materials which we consider breaches any of the requirements set out in paragraph (a) above. We may also temporarily or permanently terminate your access or your End Users’ access to an Application at any time, if, in our reasonable opinion, you or your End Users use an Application in a way that breaches paragraph (a) above.
(d) We may:
(i) subject to clause 12, disclose User Materials to third parties; and
(ii) edit, refuse to post, or to remove any Content or User Materials on or in our Applications, in whole or in part,
if, in our reasonable opinion, we consider that such action is necessary to satisfy any applicable law, regulation, legal process or governmental request.
(e) We do not endorse, and may not always be able to control, User Material or user’s actions on our Applications. Therefore, you agree that we will not be liable in respect of such User Material and any actions resulting from the participation by you, your End Users or any other user of our Applications.
(f) Contents and User Materials uploaded to or downloaded from our Applications may be subject to third party limitations on usage, reproduction and/or dissemination. You are responsible for adhering to such limitations if you upload or download any such materials.
(g) Where, it is apparent that your User Material is intended:
(i) to be published, you grant us a perpetual, royalty free, non-exclusive, right (including a right to sublicense) to use, copy, modify and otherwise exploit your User Material in any form or on any medium and for any purpose;
(ii) to not be published, but shared with other users including your other End Users, you grant us a non-exclusive right (including a right to sublicense) to use, copy and modify your User Material in order to provide the Applications to you and to share your User Material with parties with whom such User Material are intended to be shared; or
(iii) to not be published or shared with anyone else (that is, where your User Material is intended for your personal and private use), you grant us a non-exclusive right (including a right to sublicense) to use, copy and modify your User Material in order to provide the Applications to you.
4 Software Licence
(a) We may make available Software which you can download within our Applications in order to enhance your use of those Applications. Any Software and other material downloaded or otherwise obtained through the use of our Application is done at your own discretion and risk. Any such Software will contain proprietary and confidential information and may be protected by applicable intellectual property, copyright, and other laws and may only be used subject to the terms of the end-user licence agreement which accompanies or is included with the Software (Licence Agreement) and which also identifies the proprietor of the Software (Proprietor).
(b) You must not alter, copy, modify, reproduce, publish, disclose, transfer or create derivative works of the Software and you must not transfer the Software to any other server or location for reproduction, redistribution, selling, leasing or renting unless expressly permitted under the terms of the applicable Licence Agreement.
(c) Subject to clause 8(b), and to the extent permitted by law, we make no representations, warranties or conditions in relation to the Software. You should rely only on the warranties provided by the Proprietor in the Licence Agreement.
5 Fees and Charges
(a) We may charge you a fee (Subscription Fee) to access our Applications. Payment of the Subscription Fee will give you and your End Users access to that Application for the period of 12 months / specified by us at the time you pay the Subscription Fee (Subscription Term).
(b) If an Application is subject to a Subscription Fee, you and your End Users will not be able to access that Application until you have paid the relevant Subscription Fee.
(c) We will notify you at least 1 month prior to the expiry of your then-current Subscription Term. If you wish to cancel your subscription, you may notify us accordingly prior to the expiry of the then-current Subscription Term.
(d) For your convenience, we will automatically renew your subscriptions for a further Subscription Term if you do not notify us in accordance with paragraph (c). Notwithstanding this, you will still need to pay us the then current Subscription Fee for that further Subscription Term to continue to enjoy access to our Applications. We may offer you a direct debit service to help you keep your subscriptions current.
(e) We may also offer enhanced services (Enhanced Services) on an Application that are subject to additional charges.
(f) We may, from time to time, withdraw additional Enhanced Services or make certain Enhanced Services available.
(g) If you have made a prepayment for an Enhanced Service which is withdrawn or terminated before you have fully utilised that Enhanced Service, we will refund you the unused portion of your prepayment.
(h) We may, from time to time, offer various methods of payment for subscriptions to our Applications or access to our Enhanced Services. If we change the methods of payments which we made available to you, we will provide you with reasonable notice of the change.
(i) You and your End Users may, for any reason, cancel a subscription for an Application or an Enhanced Service for a full refund (less reasonable delivery and service charges) provided such cancellation occurs within seven (7) days of your initial access. Without limiting any of your rights under law, and subject to clause 8(b), after seven (7) days of your initial access to our Applications or Enhanced Service, you or your End Users will not be able to cancel that subscription other than pursuant to these Terms and Conditions or any additional terms published with the offer of the Enhanced Services.
(j) You agree to be liable for any Enhanced Services purchased by your End Users.
(a) Each consideration or payment obligation under, or made subject to, these Terms and Conditions has been calculated to include an amount on account of the liability of the party making the Supply for GST in respect of the Supplies contemplated in these Terms and Conditions.
(b) Unless otherwise stated in these Terms and Conditions, the following principles apply when determining the amount of a payment under this Agreement:
(i) if a party is entitled under this Agreement to be reimbursed or indemnified by the other party for an expense, claim, loss, liability or cost incurred in connection with these Terms and Conditions, the reimbursement or indemnity payment must not include any GST component of the expense, claim, loss, liability or cost for which an Input Tax Credit may be claimed; and
(ii) if a party sets off an amount under these Terms and Conditions, the same principles apply to calculate the amount to be set-off, as if the amount had been paid in accordance with clause (i).
(c) If an Adjustment Event occurs, the parties must do all things necessary to make sure that the Adjustment Event may be appropriately recognised, including the issue of an Adjustment Note.
(d) In this clause:
(i) GST means goods and services tax under the GST Law, as that expression is defined in A New Tax System (Goods and Services Tax) Act 1999; and
(ii) a term or expression starting with a capital letter which is defined in the GST Law but not defined in these terms has the same meaning as in the GST Law.
7 Warranty Disclaimers
7.1 No Reliance on Content
(a) All of the Content provided on our Applications (including the User Materials) is provided to you and your End Users for your (and their) personal information purposes only.
(b) Although we take all reasonable efforts to ensure that our Content is accurate, complete and up to date, we cannot guarantee it is accurate, complete or current at all times.
7.2 No Warranties
Subject to clause 8(b):
(a) our Applications and our Content are provided on an "as is, as available" basis and, to the extent permitted by law, without representations, warranties or conditions of any kind, express or implied;
(b) we cannot warrant that our Applications or Content will be available, uninterrupted or error-free, that defects will be corrected, or that our Applications or the servers on which they are hosted are free of viruses or other harmful or destructive components; and
(c) we will not be liable for loss or damage to your, or your End Users’ computer, data or telecommunications systems as a result of your, or your End Users, use of our Applications or our Content. We encourage you, and your End Users to, export and backup any of your data which you or your End Users use or provide in connection with our Applications or our Content.
(a) The security of your personal information is important to us. We take reasonable steps to prevent the personal information we hold about you from misuse, interference or loss, and from unauthorised access, modification or disclosure. This includes the use of technologies and processes such as access control procedures, network firewalls, encryption and physical security to protect the privacy of your personal information.
(b) Other than as set out in paragraph (a) above, we do not make any representations, warranties or conditions of any kind, express or implied, as to the security of any information you may provide or activities you engage in during the course of your use of our Applications.
(a) To the maximum extent permitted by law, we exclude all express or implied guarantees, warranties, representations, or other terms and conditions relating to these Terms and Conditions or its subject matter, not contained in these Terms and Conditions.
(b) Nothing in these Terms and Conditions excludes, restricts or modifies any right or remedy, or any guarantee, warranty or other term or condition, implied or imposed by any legislation which cannot lawfully be excluded or limited. This may include the Australian Consumer Law which contains guarantees that protect the purchasers of goods and services in certain circumstances.
(c) If any guarantee, warranty, term or condition is implied or imposed in relation to these Terms and Conditions under the Australian Consumer Law or any other applicable legislation and cannot be excluded (a Non-Excludable Provision), and we are able to limit your remedy for a breach of the Non-Excludable Provision, then our liability for breach of the Non-Excludable Provision is limited to one or more of the following at our option:
(i) in the case of goods, the replacement of the goods or the supply of equivalent goods, the repair of the goods, the payment of the cost of replacing the goods or of acquiring equivalent goods, or the payment of the cost of having the goods repaired; or
(ii) in the case of services, the supplying of the services again, or the payment of the cost of having the services supplied again.
(d) Subject to our obligations under the Non-Excludable Provisions and to the extent permitted by law:
(i) we are not liable for, and no measure of damages will, under any circumstances, include: special, incidental, indirect, consequential, punitive or exemplary losses or damages whatsoever or damages for loss of revenue or profits, loss of business opportunities, loss of data, loss of goodwill, or failure to realise expected savings whether in contract, tort (including negligence), in equity, under statute, under an indemnity, based on fundamental breach or breach of a fundamental term or on any other basis, whether or not such loss or damage was foreseeable and even if advised of the possibility of the loss or damage; and
(ii) our maximum aggregate liability for all causes of action arising under or relating to these Terms and Conditions or its subject matter in each consecutive 12 month period from the commencement date of these Terms and Conditions, whether in contract, tort (including negligence), in equity, under statute, under an indemnity, based on fundamental breach or breach of a fundamental term or on any other basis, will not in any circumstances exceed an aggregate of the amount paid by you under these Licensing Terms in relation to that 12 month period.
You agree to release, indemnify and hold us, and each of our respective officers, directors, employees, contractors, agents, licensors, assigns and co-branders (collectively, Indemnified Parties) harmless from and against any damages, losses, costs and expenses, claims, actions, proceedings or demands, including reasonable legal costs and expenses and any fines or penalties imposed by any regulatory, advertising or trading body or authority, related to or arising out of your or your End Users’ breach of clause 3(a).
10 Third parties
(a) From time to time, our Applications may also include access to products and services of independent third parties either directly or via links to sites operated by third parties over whom we have no control.
(b) Where reasonably possible, we will indicate the products and services provided by third parties through our Applications.
(c) The Terms and Conditions are in addition to any Third Party T&Cs which may apply to third party products and services which you access or purchase through our Applications. Where Third Party T&Cs apply to products and services which you access or purchase, we will inform you of the existence of such Third Party T&Cs and provide you with reasonable access to those Third Party T&Cs. In case of any discrepancy between these Terms and Conditions and the Third Party T&Cs, the Third Party T&Cs will prevail to the extent of the inconsistency.
(d) Even though they may be co-branded with us, and may include our trademarks, any such products and services which you acquire from third parties are subject to agreement between you and that third party. We will not be a party to, or in any way responsible or liable for, any transaction concerning products or services which you acquire from such third parties or for any content or information presented in connection with any such products or services or for the availability of sites operated by third parties.
(e) Where any element of our Applications contain advertising or other material submitted to us by third parties please note that those advertisers are responsible for ensuring that material submitted for inclusion on our Application complies with all legal requirements. While we believe these third parties are reliable, we cannot guarantee that such advertising or material will always be accurate, up-to-date or complete. You agree that we have no liability (whether to you or your End Users) in respect of any such advertisements and materials.
11 General practices regarding Use and Storage
From time to time, and where reasonably necessary, we may establish general practices and limits concerning use of our Application, including hours of operation, the maximum number of days that messages or other uploaded content will be retained on our Applications, the maximum number of messages that may be sent from or received by an account on an Application, the maximum size of any message that may be sent from or received by an account on an Application, the maximum disk space that will be allotted on our servers or any of our platforms on your or your End Users’ behalf, and the maximum number of times, and the maximum duration for which, you or your End Users may access our Applications in a given period of time.
13 Termination and Suspension
(a) You may terminate these Terms and Conditions at any time for any reason (including where we breach these Terms and Conditions) without penalty by emailing us.
(b) If you have paid to access any services on our Applications (including any Enhanced Services) which are subject to a minimum term under the specific terms of service for those services, you will have access to those relevant Applications until the end of such term, subject to our right to terminate these Terms and Conditions under clause 13(e).
(c) If you terminate these Terms and Conditions for convenience, we will not refund you the fees (or any part of them) that we have already charged you.
(d) If you terminate these Terms and Conditions due to our breach which we have failed to remedy within 14 days of being given notice to do so, we will refund you any prepaid fees (calculated on a pro rata basis) where relevant.
(e) We may terminate these Terms and Conditions or suspend your account or subscriptions of your End Users at any time by providing you with notice if:
(i) you or your End Users breach these Terms and Conditions (or the End User Terms and Conditions, as the case may be) and do not remedy that breach within 14 days of being given notice to do so;
(ii) you or your End Users have not accessed your account for 6 months; or
(iii) if the Application which you have subscribed to is going to be shut down or merged with another service. We will refund any prepaid fees (calculated on a pro rata basis) in these circumstances.
14 Consequences of Termination
If you or we terminate these Terms and Conditions under section 13 we may delete your account and each of your End Users’ accounts (including relevant registration information) and your and your End Users’ User Materials. For that reason, we recommend that you and your End Users keep a copy of your relevant User Materials.
15 Modification or Termination of our Applications
(a) We may modify, suspend or discontinue our Applications (or any part thereof) at any time for any reason in our sole discretion.
(b) If we reasonably think that a change to one or more of our Applications under section 15(a) will benefit you or have neutral impact on you, we may make the change without telling you or your End Users.
(c) If we reasonably think that a change to one or more of our Applications under section 15(a) will have a materially detrimental impact on you or your End Users, or if we decide to suspend or discontinue one or more of our Applications, we will give you reasonable notice by email and:
(i) in the case of a change, you may exercise your right under section 13(a) to terminate these Terms and Conditions. We will refund any prepaid fees (calculated on a pro rata basis) in this circumstance; or
(ii) in the case of a suspension or discontinuance, these Terms and Conditions will automatically be terminated with respect to the affected Application(s) and clause 13(e)(iii) will apply.
(d) For clarity, an example of a change to an Application that may have a material detrimental impact on you would be if we withdrew a key advertised feature of that Application without offering a reasonably comparable alternative feature.
16 Changes to these Terms and Conditions
(a) We may change these Terms and Conditions including increases in the Subscription Fee or price of Enhanced Services, at any time at our sole discretion. Any change to prices will not affect any Applications or Enhanced Services which you have already paid for.
(b) Your use of our Applications including your purchase of Enhanced Services following such change will constitute your agreement to be bound by the modified Terms and Conditions.
(c) If we reasonably think that a change to these Terms and Conditions under section 16(a) will benefit you and your End Users or have neutral impact on you and your End Users, we may make the change without telling you or your End Users.
(d) If we reasonably think that a change to these Terms and Conditions under section 16(a) will have a materially detrimental impact on you or your End Users, for example, where we increase the price of the Enhanced Services, we will give you reasonable notice by email and you can exercise your right under section 13(a) to terminate these Terms and Conditions. We will refund any prepaid fees (calculated on a pro rata basis) in this circumstance.
17 Competitions, Contests and Prize Draws
From time to time we may run competitions, contests, games, prize draws and promotions on our Applications. These may be subject to additional terms, conditions and rules that will be made available at the time of such competitions. By entering into or participating in such competitions, you agree to comply with and be bound by such additional terms, conditions and rules.
18 Copyright Policy
If you believe that your or your End Users’ copyright has been infringed by our Content or any User Material on our Applications, please email us.
(a) These Terms and Conditions are be governed by the laws of New South Wales in Australia. Each party submits to the non-exclusive jurisdiction of the courts in New South Wales to determine any matter or dispute in connection with or arising out of these Terms and Conditions.
(b) Our failure to exercise or enforce any right or provision of these Terms and Conditions does not constitute a waiver of such right or provision. If any provision or part of a provision in these Terms and Conditions is found by an arbitrator or court of competent jurisdiction to be invalid, the parties nevertheless agree that the arbitrator or court should give effect to the parties' intentions as reflected in the provision, and the other provisions of these Terms and Conditions remain in full force and effect.
(c) You may assign your rights under these Terms and Conditions if we consent (we will not unreasonably withhold consent).
(d) You agree that at any time, we may assign the rights under, and novate the benefits and obligations of, these Terms and Conditions to a third party and that third party may assume our liabilities and obligations under these Terms and Conditions. We will provide you with reasonable notice if this occurs.
(e) The headings and subtitles in these Terms and Conditions are for convenience only and have no legal or contractual effect.
(f) These Terms and Conditions comprise the entire agreement between you and us and supersede all prior agreements, representations and statements between us regarding the subject matter of these Terms and Conditions.
(g) Unless otherwise indicated, all amounts are stated and payable in Australian dollars.
(a) Unless the context otherwise requires, the following meanings apply to their corresponding terms when those words are capitalised in Terms and Conditions
Application means one or more of the following:
(a) Momentum ESR Application;
(b) Momentum mGoals Application;
(c) Momentum EYLF Application;
(d) MyPLgoals Application
(e) any other cloud based software applications that we may develop and release from time to time on a subscription basis.
Content means any material on an Application and includes all text, data, sound, visual images, graphics, photos, site design, software and all other content displayed on or contained in our Applications.
End User means any person for whom you purchase, or make available, any of our Applications and includes your students, teachers, etc.
End User Licensing Terms and Conditions has the meaning given in clause 2(c).
Enhanced Service has the meaning given in clause 5(e)
Intellectual Property Rights means all intellectual property rights of whatever nature including all rights conferred under statute, common law or equity, including all copyrights, patent rights, trade mark rights, design rights and trade secrets.
Licence Agreement has the meaning given in clause 4(a).
Momentum, MC or we or us means Momentum Cloud Pty Ltd, trading as Momentum Cloud.
Momentum ESR Application means our cloud based software application that provides online learning tools and support for educators and students at schools around Australia and available for access at http://www.esr.com.au/.
Momentum EYLF Application means our cloud based software application that provides online learning tools and support for educators and children at childcare centres around Australia and available for access at http://www.momentumeylf.com.au/.
Momentum MGoals Application means our cloud based software application which supports Aboriginal culture and education by providing local Aboriginal communities and schools with an online project that assists students to create their goals for living and learning and available for access at www.mgoals.com.au.
Momentum Goalhub Application means our cloud based software application that provides an online learning management systems around Australia and available for access at http://www.goalhub.com.au/.
Momentum MyPLgoals Application means our cloud based software application that provides online learning tools and professional development support for educators within Australia and available for access at http://www.myplgoals.com.au/.
Organisation means the educational or community institution (if any) which provides you with, or requires you to have, access to, and use of, one or more of our Applications.
Personnel means employees, secondees, agents, contractors and subcontractors.
Proprietor has the meaning given in clause 4(a).
Software means any software which we make available to you for download within an Application which enhances your use of that Application.
Third Party T&Cs means third party terms and conditions applicable to products and services which you may access or purchase through the various Momentum websites and platforms or its resellers.
User Material means any information, feedback, survey results, photographs, messages or other materials which are posted or otherwise provided on any of our Application by a user.
(b) The term “including” when used in these Terms and Conditions is not a term of limitation.