1.Interpretation

1.1 The definitions and rules of interpretation in this clause apply in these terms and  conditions (the “Conditions”).

1.2 Clause, condition, schedule and paragraph headings will not affect the interpretation of these Conditions.

1.3 Unless the context otherwise requires, words in the singular will include the plural and in the plural will include the singular.

1.4 A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.

1.5 A reference to a statute or statutory provision will include all subordinate legislation made from time to time under that statute or statutory provision.

1.6 Any phrase introduced by the words including, includes, in particular or for example, or any similar phrase, will be construed as illustrative and will not limit the generality of the related general words.

1.7 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).

2. Application of clauses

2.1 The clauses set out in these Conditions shall:

(a) apply to and be incorporated in the Contract; and

(b) prevail over any inconsistent terms or conditions contained in or referred to in the Customer’s purchase order, confirmation of order, or specification, or implied by law, trade custom, practice or course of dealing.

2.2 No addition to, variation of, exclusion or attempted exclusion of any term of the Contract shall be binding on the Supplier unless in writing and signed by a duly authorised representative of the Supplier.

2.3 If you are a consumer, nothing set out in these Conditions will affect your statutory rights as set out in the Australian Consumer Law.

3. Basis of Sale

3.1 Each order or acceptance of a Quotation for Services, Service Products and/or Goods by the Customer shall be deemed to be an offer by the Customer subject to these Conditions. The Customer shall ensure that its order is complete and accurate.

3.2 The Customer warrants that the information provided by it in connection with the Services is true, accurate and correct and is supplied for the purpose of obtaining Services, Service Products and/or Goods from the Supplier.

3.3 A binding contract shall not come into existence between the Supplier and the Customer unless and until the Supplier issues a written order acknowledgement to the Customer, or the Supplier delivers the Services, Service Products and/or the Goods to the Customer (whichever occurs earlier).

3.4 Except as noted under clause 3.5, of these Conditions no order which has been acknowledged by the Supplier may be cancelled by the Customer, except with the agreement in writing of the Supplier and provided that the Customer indemnifies the Supplier in full against all loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by the Supplier as a result of cancellation.

3.5 If the Customer is an individual you may:

a) cancel the Contract for any Goods purchased within 14 days of receipt;

b) for Services or Service Products you can cancel within 14 days of Contract completion; and

c) for digital content, your right to cancel expires when downloading or streaming starts.

3.6 All annual or multi-annual license Service Products will automatically renew for a 12 month period at the end of the licence period at the contracted price unless the Supplier is given 30 days’ notice of cancellation in writing by the Customer prior to the end of the license period.  The Supplier may elect not to renew the multi-annual license in its sole discretion, acting reasonably.

4. Description

4.1 The description of the Services, Service Products and/or Goods shall be as set out in the Supplier’s acknowledgement of order or (if there is no acknowledgment of order) the Quotation.

4.2 All specifications and advertising issued by the Supplier, and any descriptions contained in the Supplier’s catalogues or brochures are issued or published for illustrative purposes only and do not form part of the Contract.

4.3 Any typographical, clerical or other error or omission in any sales literature, Quotation, price list, acceptance of offer, invoice or other document or information issued by the Supplier shall be subject to correction without any liability on the part of the Supplier.

4.4 The Customer acknowledges and agrees that the Supplier’s employees, contractors and agents are not authorised to make any contractually binding representations concerning the Services, Service Products and/or Goods. In entering into the Contract, the Customer acknowledges that it does not rely on, and waives any claim for breach of, any such representations which have not been confirmed in writing by an authorised officer of the Supplier. However, nothing in these Conditions limits the Supplier’s liability for fraudulent misrepresentation.

5. Prices

5.1 All prices shall be as stated in the Supplier’s acknowledgement of order or (if there is no acknowledgment of order) the Quotation. All prices are exclusive of delivery, packaging, packing, shipping, carriage, insurance, GST and other charges and duties.

5.2 If GST is payable on any amounts, the Customer will pay to the Supplier an additional amount equal to the GST payable on the supply in accordance with the Quotation and/or any invoice issued by the Supplier.

5.3 The Customer will indemnify the Supplier from and against all GST and taxes which may be payable by the Supplier including any fines and penalties relating to such taxes.

5.4 The Customer will pay all amounts to the Supplier in accordance with the payment terms specified in clause 6, below.

5.5 The Supplier will not increase the amount payable for the Services, Service Products and/or Goods before providing the Customer with not less than 30 days’ notice of the increased amount. Any variation of the amount payable in accordance with this clause 5.5 will be effective for the Services, Service Products and or Goods placed within the Customer after the 30 day notice period.

6. Payment

6.1 Payment shall be made at the time of purchase of Services, Service Products and/or Goods, unless otherwise agreed in writing.

6.2 Time for payment of the price shall be of the essence of the Contract.

6.3 If the Customer fails to make payment in full on the due date, the whole of the balance of the price of the Services, Service Products and/or Goods then outstanding shall become immediately due and payable and, without prejudice to any other right or remedy available to the Supplier, the Supplier may:

a) terminate the Contract or suspend any further deliveries of Services, Service Products and/or Goods (whether ordered under the same contract or not) to the Customer until payment has been made in full; and/or

b) charge interest on the amount outstanding from the due date to the date of receipt by the Supplier (whether or not after judgment), at the annual rate of 2% above  Reserve Bank of Australia Cash Rate, accruing on a daily basis and being compounded quarterly until payment is made, whether before or after any judgment;

6.4 All sums payable to the Supplier under the Contract shall become due immediately on its termination. This clause 6.4 is without prejudice to any right to claim for interest under the law, or any right under the Contract.

6.5 The Supplier may, without prejudice to any other rights it may have, set off any liability of the Customer to the Supplier against any liability of the Supplier to the Customer.

6.6 The Supplier reserves the right to write-off any amount of overpayment by a Customer to the Supplier when there has been no transaction on the Customer’s account for 12 months or more and the account balance is below $100.00 or equivalent.

6.7 Allowance to the Customer of additional time to pay any amounts due under this Contract will not constitute a waiver by the Supplier of any of these terms.

6.8 In the event of non-payment of any amounts due under this Contract, the Customer will pay all reasonable collection expenses, legal costs and other expenses incurred by the Supplier in connection with the non-payment.

6.9 If the payment of any amounts is not made by the Customer in accordance with this Contract, the Customer must return the relevant Goods or Service Products to the Supplier (at the Customer’s cost) at the request of the Supplier.

7 Delivery

7.1 The Supplier shall use its reasonable endeavours to deliver the Services, Service Products and/or Goods on the date or dates specified in the Supplier’s acknowledgement of order, but any such date is approximate only. If no dates are so specified, delivery shall be within a reasonable time of acceptance of the order.

7.2 Time is not of the essence as to the delivery of the Services, Service Products and/or Goods and the Supplier is not liable for any claim or cost resulting from late or non delivery of the Services, Service Products and/or Goods.

7.3 Delivery shall be made during normal business hours (excluding bank or public holidays). The Supplier may levy additional charges for any deliveries made outside such hours at the Customer’s request.

7.4 The Customer shall be responsible (at the Customer’s cost) for the provision of all necessary facilities reasonably required to complete the delivery and/or installation of the Services, Service Products) and/or the Goods, including without limitation ensuring that its computer systems meet the Minimum Specifications.

8. Acceptance and Returns

8.1 The Customer shall be deemed to have accepted the Services, Service Products and/or Goods at the time of delivery.

8.2 The Customer acknowledges that the Service and Service Products is a service, and that performance of the service shall be deemed to have commenced immediately upon delivery of the Service and Service Products to the Customer. Without prejudice to the foregoing, to the extent that Service Product consisting of any licence to access or otherwise use or take any exams or sample exams (whether on an annual basis or otherwise, and whether for an unlimited number or otherwise) may be deemed to be a product, such a product shall be deemed to be perishable.

8.3 The Customer shall not be entitled to cancel or return any Service, Service Products and/or Goods following delivery unless otherwise expressly agreed by the Supplier in the Contract.

8.4 The Supplier will comply with its warranty obligations at law including under the Australian Consumer Law. However, to the maximum extent permitted by law, (including the Australian Consumer Law) the Supplier does not provide any further representations or warranties relating to the Goods, Services and/or Service Products.

8.5 To the maximum extent permitted by law, the sole liability of the Supplier in respect of defective Goods, Services or Service Products is either (at the election of the Supplier) the re supply of the defective Goods to the Customer or a refund of the amount paid by the Customer for the defective Goods.

9. Title and Risk

9.1 The risk in the Service Products and/or the Goods shall pass to the Customer on completion of delivery.

9.2 Title to the Service Products and Goods shall not pass to the Customer until the Supplier has received payment in full (in cash or cleared funds) for:

a) the Service Products and/or Goods; and

b) any other Goods and/or Services that the Supplier has supplied to the Customer in respect of which payment has become due.

9.3 Where the Supplier has supplied Goods and/or Service Products to the Customer but where title in the Goods and/or Services Products (“Goods”) has not yet passed to the Customer, the Customer acknowledges and agrees that:

a) these Conditions constitute a Security Agreement for the purposes of the Personal Property Securities Act 2009 (Cth) (“PPSA”);

b) the Customer will grant the Supplier a purchase money security interest (“PMSI”) under the PPSA in the Goods and their proceeds to secure all amounts owed to the Supplier by the Customer;

c) the Supplier may register the PMSI on the Personal Property Securities Register (“PPSR”);

d) it will undertake to do all things necessary and provide the Supplier on request all information the Supplier requires to register a financing change statement on the PPSR;

e) it undertakes not to change its name in any form or other details on the PPSR without first notifying the Supplier; and

f) it will, if required by the Supplier, pay to the Supplier, the cost of registering and maintaining registration of the Customer’s PMSI on the PPSR, within 14 days of the request.

9.4 The Supplier need not give any notice under the PPSA (including a verification statement or a financing change statement) unless the notice is required by the PPSA and cannot be excluded.

9.5 No party may disclose information of the kind referred to in section 275(1) of the PPSA (except where the parties may do so and where required due to the operation of section 275(7) of the PPSA) and the Customer must not authorise the disclosure of such information.

9.6 The Customer appoints the Supplier as its attorney to sign in the Customer’s name all documents which the Supplier considers necessary to enforce and protect its rights under these Terms.

9.7 The Customer agrees to the maximum extent permitted by law, that it waives any rights it may have pursuant to, and the parties contract out of, sections 95, 118, 123, 125, 128, 129, 130, 132(1), 132(4), 142 and 143 of the PPSA.

9.8 The Customer acknowledges and agrees that unless otherwise defined in these Terms, the terms and expressions used in this clause 9, have the meanings given to them, or by virtue of, the PPSA.

10. Service Product Licence

10.1 If the Customer is provided with any licence (from the Supplier or a third party) in respect of the Service Products or otherwise in respect of the delivery of any Service, the Customer shall accept the terms of any such licence.

11 Remedies

11.1 The Supplier shall not be liable for any non-delivery of any Service, Service Products and/or Goods (even if caused by the Supplier’s negligence) unless the Customer notifies the Supplier in writing of the failure to deliver within seven days after the scheduled delivery date.

11.2 If the Supplier’s performance of its obligations under the Contract is prevented or delayed by any act or omission of the Customer (other than by reason of a Force Majeure Event), the Customer shall be liable to pay to the Supplier all reasonable costs, charges or losses sustained by it as a result, subject to the Supplier notifying the Customer in writing of any such claim it might have against the Customer in this respect.

12 Warranties

The Customer represents and warrants that:

12.1 its execution and delivery of these Conditions has been properly authorised by all necessary and corporate actions;

12.2 it has full power to enter into and perform its obligations under these Conditions, to carry out the transactions contemplated by these Conditions;

12.3 these Conditions are valid, binding and enforceable in accordance with its terms; and

12.4 no Insolvency Event has occurred and is subsisting or is threatened in relation to it.

13 Limitation of Liability

13.1 The Supplier will indemnify and continue to indemnify the Customer against all liability, loss, damage, claim, action, demand, costs or expenses incurred or suffered by the Customer arising from:

a) any breach of these Conditions by the Supplier;

b) any breach of the laws by the Supplier; or

c) any negligent act or omission by the Supplier,

except to the extent that such Claim is caused by the Customer’s negligence, or for fraud or fraudulent misrepresentation.

13.2 The following provisions set out the maximum liability of the Supplier (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer in respect of any breach of the Contract and any representation, statement or tortious act or omission (including negligence) arising out of or in connection with the Contract.

13.3 Subject to clauses 13.1 and 13.2 :

a) the Supplier’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the price payable for the Service, Service Products and/or Goods under clause 4.

b) the Customer will indemnify and continue to indemnify the Supplier against any liability, loss damage, claim, action, demand, costs, or expenses incurred or suffered by the Supplier arising from:

i) any breach of these Conditions by the Customer;

ii) any beach of any laws by the Customer; or

iii) any negligent act or omission of the Customer,

except to the extent that such liability, loss, damage, claim action, demand, costs or expenses is caused or contributed to by the breach or negligent act or omission of the Supplier.

13.4 Notwithstanding any of provision of these Conditions, neither party will be liable to the other for Consequential Loss.

13.5 These limitations and indemnities continue after the expiration or termination of these Terms.

14 Intellectual Property Rights

14.1 The Customer acknowledges that all Intellectual Property Rights used by or subsisting in the Services, Service Products) and/or Goods are and shall remain the sole property of the Supplier or (as the case may be) third party rights owner (“Supplier’s Intellectual Property”).

14.2 The Supplier shall retain the property and copyright in all of the Supplier’s Intellectual Property and all documents supplied to the Customer in connection with the Contract and it shall be a condition of such supply that the contents of such documents shall not be communicated either directly or indirectly to any other person, firm or company without the prior written consent of the Supplier.

14.3 The Customer shall not at any time make any unauthorised use of the Intellectual Property Rights to which it has been provided access pursuant to the terms of this Contract, nor authorise or permit any of its agents or contractors or any other person to do so.

14.4 During the term of these Conditions, the Customer is authorised to use the Supplier’s Intellectual Property solely for the purpose set out in these Conditions.

14.5 The Customer must not during the term of these Conditions or upon the expiration or termination of these Conditions do anything to impair the Supplier’s Intellectual Property. Without limiting the provisions of this clause 14, the Customer must not during or after the term of these Conditions, use, register or apply to register any of the Supplier’s Intellectual Property.

15 Confidentiality and Supplier’s Property

15.1 The Customer shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Customer by the Supplier or its agents, and any other confidential information concerning the Supplier’s business or its products which the Customer may obtain.

15.2 The Customer shall restrict disclosure of such confidential material to such of its employees, agents or sub-contractors as need to know the same for the purpose of discharging the Customer’s obligations to the Supplier, and shall ensure that such employees, agents or sub-contractors are subject to obligations of confidentiality corresponding to those which bind the Customer.

15.3 This clause 15 shall survive termination of the Contract, however arising.

16 Termination

16.1 Without prejudice to any other right or remedy available to the Supplier, the Supplier may terminate the Contract or suspend any further deliveries under the Contract without liability to the Customer and, if the Services, Service Products  and/or  Goods have been delivered but not paid for, the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary if:

a) the Customer experiences Insolvency Event; or

b) the Customer ceases, or threatens to cease, to trade.

16.2 The Customer may terminate this Contract by notice to the Supplier immediately upon any of the following events:

a) if the Supplier commits a serious breach of this Contract which cannot be remedied;

b) subject to clause 16.4 , if an Insolvency Event occurs in respect of the Supplier; or

c) if the Supplier commits a serious criminal offence.

16.3 The Customer’s right to terminate this Contract pursuant to clause 16.2 (b) is subject to any statutory provisions that may restrict that party from terminating this Contract as a result of the other party’s financial position.

16.4 Termination of the Contract, however arising, shall not affect or prejudice the accrued rights of the parties as at termination or the continuation of any provision expressly stated to survive or implicitly surviving termination.

16.5 For the avoidance of any doubt, if the Customer terminates this Contract, the Customer will be liable to pay the Supplier all amounts due and owing to the Supplier under this Contract up to the date of termination.

17 Insurance

17.1 The parties must at all relevant times effect and maintain all insurances required to be effected by them at law with a reputable insurer.

17.2 The Customer will promptly provide the Supplier with copies of the certificate of currency evidencing the insurance held by the Customer upon request of the Supplier.

18 Privacy

18.1 The Supplier agrees to:

a) comply with the Australian Privacy Principles as they apply to the Supplier including:

i) to use or disclose personal information only for the purposes of this Contract;

ii) take necessary steps to ensure adequate security measures are in place to protect personal information from misuse, interference and loss and from unauthorised access, modification or disclosure;

b) not to act, or engage in any practice, that would breach the Australian Privacy Principles;

c) comply with any reasonable request or direction of the Customer or the Privacy Commissioner in relation to access to, or handling of, personal information,

d) immediately notify the Customer if it becomes aware of a breach or possible breach of any obligations contemplated in this clause 18, or the initiation of any action by the Privacy Commissioner relevant to these Conditions;

e) investigate any complaint arising out of a breach or possible breach of any obligations referred to in this clause 18, and notify the Customer of that investigation and outcome; and

f) otherwise comply with the Privacy Act.

18.2 The Supplier’s Privacy Policy can be found at www.prodigylearning.com.au/privacy-policy.

18.3 The Customer will comply with the Privacy Act when dealing with personal information and/or credit related personal information in connection with this Contract.

19. Governing law and dispute resolution

19.1 These conditions are to be construed according to the laws of New South Wales.

19.2 In the event of any dispute between the parties concerning the terms of these Conditions or any matter arising in connection with these Conditions (“Dispute”), a party may notify the other party of the existence and nature of the Dispute. Upon the other party receiving the notice, the parties must exercise good faith in attempting to resolve the dispute by negotiation between themselves through their nominated representatives.

19.3 If the Dispute cannot be resolved by negotiation under clause 19.2 within 14 days of the notice, a party may be notice to the other party, refer that Dispute for determination by a mediator to be appointed by agreement between the parties. If the parties cannot agree on the appointment of a mediator within 14 days of the service of the notice of referral, a mediator will be appointed at the request of either party by the President of the Institute of Arbitrators and Mediators (New South Wales Division). The mediation will be held in Sydney, New South Wales.

19.4 Subject to clause 19.5, a party will not institute legal proceedings against the other party in relation to these Conditions until after the conclusion of mediation conducted pursuant to clause 19.3.

19.5 Clauses 19.2 and 19.4 will not prejudice the right of a party to institute legal proceedings or to seek injunctive or urgent declaratory relief.

19.6 In the event that a party institutes legal proceedings against the other party, those proceedings will be instituted in New South Wales.

19.7 Each party acknowledges that any finding, order or judgment against it made in the context of any dispute resolution procedure may be duly registered and executed against it in any jurisdiction outside of New South Wales and that party will not raise any objection to such registration and execution.

20. General

20.1 The Supplier reserves the right to defer the date of delivery, or to cancel the Contract if it is prevented from or delayed in carrying on its business by acts, events, omissions or accidents beyond its reasonable control, including without limitation strikes, lock-outs or other industrial disputes (whether involving the workforce of the Supplier or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors (Force Majeure Event).

20.2.A waiver of any right under the Contract is only effective if it is in writing and signed by or on behalf of the waiving party, and it applies only to the party to whom the waiver is addressed and the circumstances for which it is given.

20.3 Unless specifically provided otherwise, rights arising under the Contract are cumulative and do not exclude rights provided by law.

20.4 If any provision of these Conditions or the Contract (or part of a provision) is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.

20.5 Each of the parties acknowledges and agrees that in entering into the Contract it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to this Contract or not) relating to the subject matter of this Contract other than as expressly set out in the Contract.

20.6 The Customer shall not, without the prior written consent of the Supplier, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Contract.

20.7 The Supplier may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Contract.

20.8 The Contract is made for the benefit of the parties to it and (where applicable) their successors and permitted assigns, and is not intended to benefit, or be enforceable by, anyone else.

20.9 Any notice required to be given pursuant to this Contract shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the address of the party as set out in the Contract, or such other address as may be notified by one party to the other. A notice delivered by hand is deemed to have been received when delivered (or, if delivery is not in business hours, 9.00 am on the first business day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post.

20.10 The parties agree that there is no partnership, joint venture or employment relationship between them. The Customer must not purport on behalf of the Supplier to enter into any agreement or arrangement or give any warranty or make any representation with respect to the Goods, Services or Service Products or any other matter. A party will not be bound by the acts or the conduct of the other party.

20.11 These Conditions, (and where appropriate, the Customer Agreement, Supply Goods Agreement and /or  Memorandum of Understanding Agreement (“Supplier Agreements”) (“Supplier Agreements”)) contain the entire agreement between the parties in respect of the subject matter of these Conditions. The Supplier Agreements supersedes any prior agreement or understanding (if any) between the parties and there is no collateral or other form of agreement between the parties in relation to the subject matter of this Agreement.