Software Supply Terms
Reading Kilometres Pty Ltd ACN 669 883 676 (we/us/our) provides the Platform and the Services and the User (you) wishes to access the Platform and receive the benefit of the Services.
We have agreed to grant you access to the Platform and to provide you with the Services on the terms set out in this Agreement.
The terms of this Agreement are accepted where you:
create or establish an Account with us to access the Platform; or
use an electronic means to indicate you agree to these terms, for example by using a “click and accept” function.
If you are accepting this Agreement on behalf of another party (for example as a Primary Account Holder), you represent and warrant to us that:
you are duly authorised to accept this Agreement on behalf of the relevant party and to bind that party to this Agreement; and
you agree that you will be personally liable to us under this Agreement and will indemnify us against any Loss that we may suffer or incur as a result of your purported acceptance of this Agreement without appropriate authority.
If the Primary Account Holder is a child under the age of 18, you must have your parent or legal guardian’s consent to create an Account. If you, as a parent or legal guardian, consent to your child creating an Account:
you accept these terms on their behalf; and
you are responsible for the activity of your child on the Platform and indemnify us against any claims or Loss that we may suffer or incur as a result of their use of the Platform.
If there is any inconsistency or conflict between any of the provisions of the documents comprising this Agreement, to the extent of that inconsistency, the following order of priority will be given to the respective documents:
this document, and any annexures, schedules and appendixes to it; and
our policies (including without limitation our Privacy Policy) which are incorporated into this Agreement by reference.
On and from the Acceptance Date and for the duration of our Agreement you are granted a licence to access and use the Platform (Licence).
The Licence granted pursuant to clause 3.1(a) is not exclusive, sublicensable or transferable.
The Licence provided to you to use the Platform pursuant to clause 3.1, is conditional upon the following:
you agree that you must:
only use the Platform in accordance with this Agreement;
only use the Platform for the purposes it was expressly intended, or as set out in any User Documentation provided;
comply with all reasonable and lawful directions that we may give from time to time with respect to your use of the Platform;
actively and diligently take all appropriate steps to ensure that the integrity of our Intellectual Property Rights subsisting in the Platform is maintained and protected from any nefarious actors that may seek to infringe those rights;
maintain the security of your account log in information;
cooperate with us in remediation of any security breach, Data Breach,
unauthorised use or misuse of the Platform (and promptly report all such matters to us); and
you agree that you must not:
be involved in any business activity that is unlawful or that we reasonably consider would be likely to adversely impact upon our reputation;
allow or engage any third party to conduct development work on the Platform without first obtaining our written consent, which we may withhold in our sole discretion;
interfere or disrupt the operation of the Platform nor attempt to do so;
grant access to the Platform to anyone other than an Authorised User, unless we provide you with our express written consent;
gain access to or utilize any data belonging to a third party without consent of that party (or otherwise attempt to do so); and
subject to any right under, sections 47B (3), 47C, 47D, 47E or 47F of the
Copyright Act 1968 (Cth), either directly or indirectly, modify, attempt to decompile, cross compile, disassemble, reverse engineer, or use any other means to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Platform.
You acknowledge and agree that your failure to comply with the obligations set out in this clause may result in (at our discretion):
our termination of the licence granted to you pursuant to clause 3.1 of this Agreement; or
our suspension or limitation of your access to the Platform.
You hereby release and hold us harmless in respect of any Loss that you may suffer as a consequence of our exercise of any of our rights pursuant to sub-clause 3.2(c).
We may from time to time update the Platform. Once the Platform has been updated all new services offered because of the update will be governed by the terms of this Agreement.
For the avoidance of doubt, we are under no obligation to update the Platform. However, you acknowledge that if we do provide an update to the Platform:
you may be required to activate and implement the update to continue to access the Platform and receive the Services; and
a failure to implement or activate any update may negatively affect your ability to access and use the Platform, as well as the accuracy and functionality of the Services.
You acknowledge and agree that the failure to implement or activate an update that we have provided to you may result in your exposure to security risks that could otherwise be avoided (including in the form of exposure to a Data Breach). You acknowledge that we will not be liable to you for any Loss that you suffer (howsoever occurring) as a consequence of your failure to implement and activate any update relating to the Platform.
Where you require general support services regarding your access and use of the Platform, we will use our best endeavours to:
respond to all requests for support in a timely manner; and
resolve all general support queries as quickly as possible.
Notwithstanding clause 4(a), you acknowledge and agree that we accept no responsibility or liability for any Loss that you may suffer or incur as a result of any support related issues remaining unresolved, or not being attended to in a timely manner.
The Fees that are payable by you to us for accessing and using the Platform will be dictated by the type of membership you select, including a ‘school membership’, ‘family membership’ or ‘reading enthusiast membership’;
You will be notified within the Website at the time that you create your Account of:
the Fees associated with creating and maintaining your Account; and
the billing period associated with maintaining your Account membership.
Our Fees will be charged in Australian dollars and converted to the currency applicable in
your region in accordance with your banking provider.
If you dispute any Fees charged you must provide notice to us within seven (7) days of the charge clearing in your nominated payment method of your reasons for the dispute.
Within a reasonable time of receiving the notice, we will address your reasons of dispute, to enable a prompt and amicable resolution. If the dispute cannot be resolved within seven (7) days of our response, then the dispute must be referred to the procedure contained in clause 15.
If your payment of any Fees under this Agreement is unsuccessful, we may at our discretion, terminate or suspend your access to the Platform and our delivery of Services until all outstanding payments have been made.
Where we exercise our rights of suspension or termination pursuant to clause 5.3(a) you release and hold us harmless from any Loss that you may suffer or incur as a consequence of such action.
All amounts under this Agreement are inclusive of GST. If GST is imposed on any supply made under or in accordance with this engagement and GST has not been accounted for in determining the consideration payable for the supply, then we may recover from you an amount on account of GST.
To create an Account, we require that you provide certain information, including your:
full name;
birthdate;
unique email address; and
school name (where applicable).
You may also elect to upload a photo to your Account profile and warrant that you own or are permitted to use under a licence all Intellectual Property Rights in any photograph uploaded to the Platform.
A Primary Account holder will be either a family member for ‘family memberships’ or school representative for ‘school memberships’ and will be responsible for maintaining the membership and payment of the relevant Fees according to this Agreement.
Each Primary Account holder may nominate the number of Authorised Users specified under their subscription level. Each Primary Account holder may accept or deny each User who sends a request to join a Primary Account.
The Primary Account holder may choose to upgrade or downgrade their subscription level at any time.
You hereby release and hold us harmless from and indemnify us for any Loss that we suffer (howsoever incurred) and any claims by you that arises as a consequence of or in relation to our reliance upon any direction, instruction, statement or representation made by your Primary Account holder.
Whilst you have Access under a trial account you are not required to pay Fees.
A trial account is only granted for a limited time, as published on the Platform or as otherwise agreed to by us in our sole discretion.
All data, apps and servers used within the Platform will be stored on third party servers which may be located outside of Australia.
Where you have created an Account on the Platform, we will retain the following data in our databases until such time as you elect to delete your Account:
your name;
email address;
account data;
school name (where applicable); and
user password.
You are responsible for maintaining back-ups of all data which is provided through the Platform, including reports generated.
You are responsible for obtaining and maintaining all of your Systems.
We may provide recommendations regarding actions that can be taken to optimise your Systems, however where we do so you acknowledge that it remains your responsibility to undertake your own due diligence to ensure that such recommendations, if implemented, are appropriate, compatible and suitable with respect to your existing Systems.
You are responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Platform.
You represent, warrant and undertake that you have the capacity and authority to enter into this Agreement;
You acknowledge and agree:
computer and internet services are not fault free and occasional periods of downtime may occur;
from time to time the Platform will be made unavailable to enable us to implement updates to the Platform or to undertake maintenance;
we may make recommendations to you regarding the adoption and implementation of various technological protection and other security measures. However, we make no representation or warranty that by adopting and implementing any recommendation that we have made that:
your Systems will remain safe or secure from hacking, malware, viruses or other nefarious actors; or
you will be safe from or avoid a Data Breach, whether occurring through the malicious intent of a third party actor or otherwise;
the provision of the Platform is dependent upon the availability of third party servers and platforms and, to the extent that such third party servers or platforms are unavailable,
the Platform may also be unavailable; and
in addition to any other rights or remedies we may have, we may suspend or terminate your access to the Platform at any time and without any liability to you, if we are reasonably of the view that you or an Authorised User is in breach or is likely to breach a material provision of this Agreement.
You acknowledge that we may unilaterally make changes to this Agreement and to our Privacy Policy to the extent that such changes are necessitated by any variations to any applicable Privacy Laws or other Law, and such changes will apply immediately upon notice of the variation being provided to you.
You agree that, unless otherwise agreed, we may publish your branding and testimonials on our website or on any of our other promotional material for the purpose of representing that you are a client of ours, provided we comply with our confidentiality obligations contained in clause 11.
In providing you with access to the Platform and delivering our Services we will:
provide reasonable notice of all scheduled maintenance and anticipated downtime with respect to the Platform; and
ensure that the Platform is provided in accordance with the terms of this Agreement and all relevant and applicable Laws.
When processing any of your data or personal information, we must:
comply with the Privacy Laws and our Privacy Policy;
treat your data as Confidential Information;
implement and maintain appropriate technical and organisational measures to protect the data from any misuse, loss, interference, unauthorised access, modification or disclosure;
subject to any third-party hosting issue, ensure that you are able to access your data (to the extent that is within our control);
notify you if we become aware of any suspected or actual misuse or loss of, interference with or unauthorised access to,
modification of or disclosure of, your data or any personal information (Data Breach) or if we are required by any other Law to disclose any of your data for any reason; and
inform and reasonably co-operate with you in the event of any risk regarding the security of your data.
Each Party retains all right, title and interest in and to its pre-existing Intellectual Property Rights.
You acknowledge that we either own or use under licence all Intellectual Property Rights in the Platform and User Documentation, and nothing in this Agreement has the effect of transferring ownership of any such Intellectual Property Rights to you.
You acknowledge and agree that all Intellectual Property Rights in the variations, modifications, additions and alterations to the Platform are owned by us, even where suggested or contributed to by you through feedback.
Each party must:
keep confidential all Confidential Information;
only use Confidential Information for the purpose of providing or using (as the case may be) the Platform; and
procure that its personnel comply with sub- clauses (a) and (b).
The obligations in clause 11.1 do not apply:
to the extent necessary to enable a party to make any disclosure required by Law;
to the extent necessary to enable a party to perform its obligations under this Agreement;
where disclosure is required for any audit, quality assurance or insurance purposes as is reasonably required;
to the extent necessary to receive professional (legal or financial) advice or pursue a legal claim;
to any disclosure agreed in writing between the parties; or
in respect of any portion of the Confidential Information which has entered the public
domain other than as a result of a breach of this Agreement.
This Agreement commences on the Acceptance Date and continues for each Rollover Period until terminated by either party in accordance with this clause 12.
A Primary Account holder may terminate this Agreement at any time by cancelling their current subscription via the Website.
A User may terminate this Agreement at any time be deleting their Account via the Website.
Where you terminate at least:
one (1) week prior to the end of the current subscription period for monthly subscriptions; or
one (1) month prior to the end of the current subscription period for yearly subscriptions,
termination will take effect at the end of the then current subscription period.
You will continue to have access to the Platform and the Services through to the end of your then current subscription period.
For the avoidance of doubt, termination of this Agreement pursuant to sub-clause (a) will not entitle you to any refund of Fees that have been paid in respect of the then current billing period.
Either Party may, without prejudice to its other rights or remedies, terminate this Agreement with immediate effect by written notice to the other party, in the event of:
the other party becoming Insolvent.
Upon termination or expiry of this Agreement:
you will be given a reasonable opportunity to download and export all data, however we will not be liable to you in any way where you have failed to obtain your data before it is deleted; and
any accrued rights or liabilities of either party or any provision of this Agreement which is expressly or by implication intended to come into or continue in force on or after such termination will not be affected.
You agree to indemnify us and to keep us indemnified against any Loss that we may suffer or incur (whether or not such Loss has actually been realised) arising from or in connection with (directly or indirectly):
any breach or default of this Agreement by you, your Authorised Users or your Primary Account holder;
any breach of any third party licence by you, any of your Authorised Users or your Primary Account holder;
any negligent act or omission by you, your Authorised Users or your Primary Account holder; and
your failure, or the failure of your Authorised Users or Primary Account holder to comply with any Law.
Subject to clause 13.2(b), we will indemnify you with respect to any Loss suffered as a result of any Claim made against you by a third party alleging that the Platform infringes the Intellectual Property Rights of that third party.
We will not be liable to you under 13.2(a) if:
you do not notify us of the other person's Claim within 10 Business Days after becoming aware of it;
our ability to defend the Claim has been prejudiced by your non- compliance with any of your obligations under this Agreement;
you do not give us reasonable assistance (based on the circumstances) in defending the Claim; or
you do not permit us to have control of the defence of the Claim and all related settlement negotiations.
To the maximum extent permitted by Law, we will not be liable for any Consequential Loss arising out of or in connection with this Agreement, the delivery of our Services or the use of the Platform by you or any of your
Authorised Users even if we were appraised of the likelihood of such Loss or damage occurring.
You expressly acknowledge and agree that to the maximum extent permitted by Law, we will not be liable for any Loss that you suffer or incur because of a Data Breach.
Except as expressly provided by this Agreement, the Platform is provided on an “as is” basis without any representation, warranty or guarantee as to quality, condition or fitness for purpose and we do not warrant it will be free of defect, uninterrupted, accurate, complete, current, stable, bug free, error free or available at any time.
To the extent permitted by Law, except in relation to liability for personal injury, property damage or an infringement of Intellectual Property Rights, our liability is limited to the net payment received by us from you in the immediately preceding 12 months from when the cause of action arose.
You release us and hold us harmless in respect of all Loss and liability suffered or incurred as a result of:
any loss, destruction or damage to data, whether caused by the Platform, as a result of our delivery of Services, or by a third party provider of cloud- based storage or hosting, including (without limitation) as a consequence of a failure to appropriately backup any of your data;
the occurrence of any of the matters contemplated in clause 8(b);
the exercise of any of our rights (including of suspension or termination); or
any third party software malfunctions or malfunctions in the Platform caused as a result of interference by a third party.
Subject to sub-clause 13.5(b) any condition, guarantee or warranty which would otherwise be implied in this Agreement is hereby excluded.
Liability for breach of a guarantee conferred by the Australian Consumer Law (other than those conferred by ss 51 to 53 of the Australian Consumer Law) is limited (at our election) to us providing the Services again or the payment
of the cost of having the Services supplied again.
Any notices given under or in connection with this Agreement:
must be in legible writing and in English;
must be either addressed to a party’s contact address as specified in this Agreement or as otherwise notified by a party to the other party from time to time; and
must be:
delivered to that party’s address;
sent by pre-paid mail to that party’s address;
sent by email to that party’s email address; or
in our case, sent or delivered to the:
Primary Account holder’s contact address you have provided; or
Primary Account holder by internal mail or notification within the Platform; and
will be deemed to be received by the addressee (even where in our case delivered to the Primary Account holder):
if delivered by hand, at the time of delivery;
if sent by post, on the third Business Day after the day on which it is posted, the first Business Day being the day of posting;
if sent by email, at the time that would be the time of receipt under the Electronic Transactions Act 1999 (Cth); or
if sent via the Platform at the time it is sent.
If a dispute arises between the parties to this Agreement (Participants) that arises out of or in connection with this Agreement (including any dispute as to the validity of this Agreement) which they cannot resolve, then the parties agree that before any court or arbitration proceedings (other than for urgent interlocutory relief) are commenced with respect to the dispute, the following steps
must be taken to attempt to resolve the dispute.
The party claiming that a dispute has arisen must deliver to the other parties a notice containing particulars of the dispute (Dispute Notice).
During the period of 10 Business Days after delivery of the Dispute Notice, or any longer period agreed in writing by the parties to the dispute (Initial Period), the Participants must use their reasonable endeavours and act in good faith in an attempt to resolve the dispute.
If the Participants cannot resolve the dispute within the Initial Period, then unless they all agree otherwise, the Participants must refer the dispute to the Resolution Institute for the facilitation of a mediation according to the Resolution Institute’s Mediation Rules.
If within 10 Business Days after the referral of the dispute to the Resolution Institute the parties have not agreed upon the mediator or any other relevant particular, the mediator and the particular not agreed will be determined in accordance with the Resolution Institute’s Facilitation Rules.
All Participants must participate in the mediation in good faith and cooperate with the Resolution Institute as a facilitator.
The obligations of clauses 11 to 15 survive the termination of this Agreement.
Clause 16.1(a) is not intended to limit or preclude the survival of any term of this Agreement that by its nature would be expected to survive termination, or which would otherwise be made redundant or ineffective if it were to expire upon termination.
Subject to the provisions of this Agreement, this Agreement may only be varied by a further written agreement accepted by or on behalf of each of the parties.
Nothing in this Agreement will be construed as creating a partnership or any other relationship between the Parties, or provide any exclusivity in the relationship between the Parties or the provision of the Services.
Neither party will be liable for any delay or failure to perform its obligations pursuant to this Agreement if such delay is due to Force Majeure. If a delay or failure of a party to perform its obligations is caused or anticipated due to Force Majeure, the performance of that party’s obligations will be suspended. If a delay or failure by a party to perform its obligations due to Force Majeure exceeds thirty (30) days, either party may immediately terminate this Agreement on providing notice to the other party.
We may, upon notice in writing to you, assign or otherwise transfer the benefit of all or any part of this Agreement to any other person or entity.
Neither any rights, benefits or liabilities relating to this Agreement may be assigned by you without our prior consent, which will not be unreasonably withheld.
Unless this Agreement expressly states otherwise, a party may in its absolute discretion, give conditionally or unconditionally or withhold, any consent under this Agreement. To be effective any consent under this Agreement must be in writing.
Each party will pay their respective costs and expenses of in connection with the negotiation, preparation, execution, and performance of this Agreement.
This Agreement contains the entire agreement between the parties about its subject matter. Any previous understanding, agreement, representation or warranty relating to that subject matter is replaced by this Agreement and has no further effect. You warrant that you have not relied on any representation made by us which has not been stated expressly in this Agreement.
Each party must promptly do all further acts and execute and deliver all further documents required by law or reasonably requested by another party to give effect to this Agreement.
This Agreement is governed by the Law in force in the State of Queensland Australia and each party submits to the non-exclusive jurisdiction of the courts of Queensland and the courts competent to determine appeals from those courts, in relation to any
proceedings that may be brought at any time relating to this Agreement.
No right or obligation of any party will merge on completion of any transaction contemplated by this Agreement.
Any provision of this Agreement that is illegal, void or unenforceable will be severed without prejudice to the balance of the provisions of this Agreement which shall remain in force.
Failure to exercise or enforce or a delay in exercising or enforcing or the partial exercise or enforcement of any right, power or remedy provided by Law or under this Agreement by any party will not in any way preclude, or operate as a waiver of, any exercise or enforcement, or further exercise or enforcement of that or any other right, power or remedy provided by Law or under this Agreement.
Any waiver or consent given by any party under this Agreement will only be effective and binding on that party if it is given or confirmed in writing by that party and no waiver of a breach of any term of this Agreement will operate as a waiver of another breach of that term or of a breach of any other term of this Agreement.
In this Agreement:
Competition and Consumer Act 2010 (Cth).
in relation to a corporation, any Related Body Corporate, any director, any person that has a substantial holding (as that term is defined in the Corporations Act) in the corporation, any person with whom the corporation is acting, or proposes to act, in concert and any person with whom the corporation is, or proposes to become, associated in any other way whether formally or informally; and
in relation to a natural person, their spouse, any relative (including adoptive) of the person or the person’s spouse, or any corporation in respect of which the person is an associate because of clause (a) above.
(Cth).
the performance of a party’s obligations under this
Agreement.
GST means a goods and services tax, or a similar value added tax, levied or imposed under A New Tax System (Goods and Development Services Tax) Act 1999 (Cth).
copyright, patents, rights in circuit layouts, trademarks, designs, trade secrets, know how, and any right to have confidential information kept confidential;
any application or right to apply for registration of any of the rights referred to in paragraph (a); and
all rights or a similar nature to any of the rights in paragraphs (a) and (b) which may subsist,
whether or not such rights are registered or capable of being registered.
Privacy Law means the Privacy Act 1988 (Cth) and any other applicable law, regulation or directive of a government agency regarding the collection, storage and use of personally identifiable information, including without limitation:
the Privacy Act 1988 (Cth);
the GDPR; and
the ePR.
at the expiration of the initial billing period; and
again, in perpetuity on the expiry of each earlier Rollover Period.
In interpreting this Agreement, unless the context provides otherwise:
the singular includes the plural and vice versa, and a gender includes other genders;
another grammatical form of a defined word or expression has a corresponding meaning;
a reference to a rule, paragraph or schedule is to a rule or paragraph of, or schedule to, this Agreement and a document or instrument includes the document or instrument as novated, altered, supplemented or replaced from time to time;
a reference to time is to time in Brisbane Queensland, Australia;
a reference to a person includes a natural person, partnership, body corporate, association, and any government agency;
a reference to a party means a party to this Agreement and includes the party’s executors, administrators, successors, substitutes (including by novation) and assigns;
a reference to a group of persons is to any 2 or more of them taken together and to each of them individually;
a reference to the whole is to each part of it;
a reference to a statute, regulation, code or provision of a statute, regulation or code includes any modification or re-enactment of it, a legislative provision substituted for it and a regulation or statutory instrument issued under it;
“including” and similar expressions are not words of limitation;
costs and expenses include legal costs and expenses on a full indemnity basis;
conduct includes an omission, statement or undertaking, whether or not in writing;
"property" or “asset” includes all property and assets of any nature, including a business, and all rights, revenues and benefits;
a rule of construction does not apply to the disadvantage of a party because the party was responsible for the preparation of this document or any part of it;
if a day on or by which an obligation must be performed or an event must occur is not a Business Day, the obligation must be performed or the event must occur on or by the next Business Day;
where time is to be calculated by reference to a day or event, that day or the day of that event is excluded;
a word or expression defined in the Corporations Act has the meaning given to it in the Corporations Act; and
headings and table of contents are for ease of reference only and do not affect interpretation.