CHILDREN’S EBOOKS®
End-User Licence Agreement
The following Terms and Conditions govern your usage of the CHILDREN’S EBOOKS website, childrensebooks.com.au. CHILDREN’S EBOOKS sells and promotes children’s Kindle books and classic children’s stories for download and use on iPads, computers, tablets and phones.
1. CHILDREN’S EBOOKS Licence
(a) CHILDREN’S EBOOKS® grants the Customer, Client, Agent or Installer a Licence to use the CHILDREN’S EBOOKS®Software for the duration of the Term.
(b) The Customer, Client, Agent or Installer will not pay a License Fee to CHILDREN’S EBOOKS®for the duration of the Term.
(c) The Licence and this Agreement are at all times subject to all relevant laws, intellectual property rights and international treaties.
2. CHILDREN’S EBOOKS Conditions of License
(a) The License is non-transferable and non-exclusive to the Customer, Client, Agent or Installer.
(b) Use of the CHILDREN’S EBOOKS®Software is strictly limited to:
Users approved by CHILDREN’S EBOOKS® Australia Pty Ltd;
Users that have been trained by CHILDREN’S EBOOKS® in accordance with this Agreement;
the Location; and
the duration of the Term.
(c) The Customer, Client, Agent or Installer will use the CHILDREN’S EBOOKS®Software and App exclusively for its own, entirely commercial, internal business services.
(d) The Customer, Client, Agent or Installer will ensure that at all times the CHILDREN’S EBOOKS®Software and App over which the Customer, Client, Agent or Installer has control is:
used in accordance with all applicable laws, regulations standards and industry codes of conduct;
not used for any illegal, unlawful or offensive purpose; and
not subjected to any damage or unauthorised access, use, copying or distribution.
(e) The Customer, Client, Agent or Installer will immediately notify CHILDREN’S EBOOKS® in writing on becoming aware of any illegal, unlawful or offensive use or unauthorised access, use or copying of the whole or any part of the CHILDREN’S EBOOKS®Software and App.
(f) The Customer, Client, Agent or Installer will not:
sell, lease or otherwise deal with the CHILDREN’S EBOOKS®Software and App as personal property; or
remove any proprietary notices or labels on or in the CHILDREN’S EBOOKS®Software and App;
attempt to undermine the security or integrity of any computing systems or networks that store or operate the whole or
any part of the CHILDREN’S EBOOKS®Software and App or any update to the CHILDREN’S EBOOKS®Software and App;
use or misuse the CHILDREN’S EBOOKS®Software and App in any way which may impair the ability of any other person to use
the CHILDREN’S EBOOKS®Software and App;
through use or knowledge of the CHILDREN’S EBOOKS®Software and App attempt to gain unauthorised access to any
materials other than those on the computer system on which the CHILDREN’S EBOOKS®Software and App is installed; or ransmit, or input into the CHILDREN’S EBOOKS®Software and App, any files that may damage any other computing
devices or CHILDREN’S EBOOKS®Software and App, content that may be offensive, or material or data in violation of any law (including data or other material protected by intellectual property law).
(g) Subject only to sections 47B(3), 47C, 47D, 47E or 47F of the Copyright Act 1968 (Cth) the Customer, Client, Agent or Installer will not:
copy the whole or any part of the CHILDREN’S EBOOKS®Software and App;
modify the whole or any part of the CHILDREN’S EBOOKS®Software and App or combine or incorporate the whole or any
part of the CHILDREN’S EBOOKS®Software and App in any other program or system;
reverse assemble or reverse compile the whole or any part of the CHILDREN’S EBOOKS®Software and App; or
create any derivative works based on the CHILDREN’S EBOOKS®Software and App.
(h) Not withstanding clause 2
(g) The Customer, Client, Agent or Installer may copy the CHILDREN’S EBOOKS®Software and App as is necessary to serve its internal needs for backup and security.
3. CHILDREN’S EBOOKS Change in Users or Location
(a) The Customer, Client, Agent or Installer will not change the number of Users or the Location without first obtaining CHILDREN’S EBOOKS® written consent (which will not unreasonably be withheld).
4. Extending the Term
(a) At any time, the Customer, Client, Agent or Installer may give written notice to CHILDREN’S EBOOKS® requesting an extension of the Term by 12 months.
(b)Within 14 days of receipt of notice requesting an extension, CHILDREN’S EBOOKS® must provide notice to the Customer, Client, Agent or Installer advising whether CHILDREN’S EBOOKS® accepts or rejects the request.
(c) CHILDREN’S EBOOKS® must not unreasonably refuse a request for an extension of the Term.
(d) Without limiting the reasons for refusal,it is not unreasonable for CHILDREN’S EBOOKS® to refuse a request for an extension of the Term if:
the Customer, Client, Agent or Installer has breached this Agreement and the breach has not been remedied;
the Customer, Client, Agent or Installer has committed at least 2 breaches of a like nature during the Term, regardless of
whether those breaches have been remedied; or
CHILDREN’S EBOOKS® in its sole discretion plans to cease selling and/or supporting the CHILDREN’S EBOOKS®Software and
App within 12 months of the request.
(e) If the Customer, Client, Agent or Installer with CHILDREN’S EBOOKS® consent continues to use the CHILDREN’S EBOOKS®Software and App after the expiration of the Term, then:
the Term will continue from month to month on the conditions in this Agreement so far as they are applicable to a Term of 1 month;
this Agreement may be terminated by either party giving the other party 1 month’s notice; and
the Licence Fee payable in respect of the extension of the Term will remain at the same rate as the Licence Fee payable
immediately prior to the expiration of the Term and will be payable in advance.
5. CHILDREN’S EBOOKS Ownership
(a) CHILDREN’S EBOOKS® will retain ownership of the CHILDREN’S EBOOKS®Software and App (and all copies) whether in its original form or as modified during the Term.
(b) All Intellectual Property Rights in the CHILDREN’S EBOOKS®Software and App and any documentation, methodologies or other proprietary information will be retained by CHILDREN’S EBOOKS®.
(c) Nothing in this Agreement will affect the ownership of Moral Rights in the CHILDREN’S EBOOKS®Software and App.
(d) The Customer,Client, Agent or Installer will retain ownership of its own data that it accesses via or enters into the CHILDREN’S EBOOKS®Software and App.
(e) The Customer, Client, Agent or Installer will mark all copies of the CHILDREN’S EBOOKS®Software and App and Media with
notice of:
CHILDREN’S EBOOKS® ownership of the CHILDREN’S EBOOKS®Software and App;
the confidentiality of the CHILDREN’S EBOOKS®Software and App; and
such other information as CHILDREN’S EBOOKS® requires.
(f) The Customer, Client, Agent or Installer will maintain a record of all copies of the CHILDREN’S EBOOKS®Software and App
made by it and the location of the copies and provide the record to CHILDREN’S EBOOKS® upon request.
6. CHILDREN’S EBOOKS®Software and App Installation
(a) CHILDREN’S EBOOKS® will take all reasonable steps to install the CHILDREN’S EBOOKS®Software and App on the Customer, Client, Agent or Installer’s computers on or before the Delivery Date.
(b) The Customer, Client, Agent or Installer will pay the Installation Fee to CHILDREN’S EBOOKS®within 7 days of receipt of an invoice from CHILDREN’S EBOOKS® for the installation.
(c) CHILDREN’S EBOOKS® will only install the CHILDREN’S EBOOKS®Software and App:
on the minimum number of computers strictly necessary to facilitate the use of the CHILDREN’S EBOOKS®Software and App
at the Location and by the number of Users described in the Proposal; and
on computers that at the least conform to the minimum system requirements for the CHILDREN’S EBOOKS®Software and
App provided by CHILDREN’S EBOOKS® from time to time.
(d) The Customer, Client, Agent or Installer will at its own expense permit CHILDREN’S EBOOKS® access at all reasonable times to
the Customer, Client, Agent or Installer’s computers for the purpose of installing the CHILDREN’S EBOOKS®Software and App
and will cooperate with and assist CHILDREN’S EBOOKS® in installing the CHILDREN’S EBOOKS®Software and App.
(e) The Customer, Client, Agent or Installer will immediately notify CHILDREN’S EBOOKS® of any difficulties experienced by the
Customer, Client, Agent or Installer with initially using the CHILDREN’S EBOOKS®Software and App.
(f) The Customer, Client, Agent or Installer will at its own cost cooperate with and assist CHILDREN’S EBOOKS® in investigating
and if required providing assistance for difficulties with initially using the CHILDREN’S EBOOKS®Software and App.
(g) If the Customer, Client, Agentor Installer does notnotify CHILDREN’S EBOOKS® of any difficulties within itially using the
CHILDREN’S EBOOKS®Software and App within 14 days of the Delivery Date:
the CHILDREN’S EBOOKS®Software and App will be deemed to have been successfully installed and initially used; and
CHILDREN’S EBOOKS® will have no obligation to provide any assistance for difficulties with initially using the CHILDREN’S EBOOKS®Software and App.
7. Third Party Programs
(a) The Customer, Client, Agent or Installer may use third party programs in conjunction with the CHILDREN’S EBOOKS®Software and App during the course of this Agreement.
(b) CHILDREN’S EBOOKS® provides no warranties regarding the CHILDREN’S EBOOKS®Software and App’s ability to extractor transfer data or information from or to any third party program.
(c) The Customer, Client, Agent or Installer acknowledges that the CHILDREN’S EBOOKS®Software and App may inaccurately transmit data to any third party program and that the transfer of the data to any third party program may be ineffective.
(d) Nothing in this Agreement grants the Customer, Client, Agent or Installer any rights, licenses or permissions in relation to any third party program.
(e) The Customer, Client, Agent or Installer will:
obtain the relevant rights, licences or permissions to use any third party program;
pay all costs arising from or connected to its use of any third party program; and
ensure that it complies with all terms and conditions set down by the third party in relation to any third party program it
uses.
(f) CHILDREN’S EBOOKS® provides no warranty in relation to:
any third party program; or
the performance of the CHILDREN’S EBOOKS®Software and App when being used in conjunction with any third party
program.
8. Training
(a) On or before 14 days after the Delivery Date, the Customer, Client, Agent or Installer will ensure all Users are present at a location and at the reasonable times agreed upon in writing by CHILDREN’S EBOOKS® and the Customer, Client, Agent or Installer for the purpose of CHILDREN’S EBOOKS® providing Training.
(b) CHILDREN’S EBOOKS® will in its sole discretion determine:
the nature of the Training;
the duration of the Training;
the content of the Training;
the methods of assessing Users; and
whether any User has successfully completed the Training.
(c) The Customer, Client, Agent or Installer will pay the Training Fee to CHILDREN’S EBOOKS® for each User within 7 days of
receipt of an invoice from CHILDREN’S EBOOKS® for the training.
(d) At any time from 14 days after the Delivery Date, CHILDREN’S EBOOKS® may monitor the proficiency of the Users and if necessary, arrange additional training at a location and time nominated by CHILDREN’S EBOOKS® at the Customer, Client, Agent or Installer’s expense.
9. Support
(a) Provided always that the Customer, Client, Agent or Installer is not in breach of this Agreement, during the Term the Customer, Client, Agent or Installer may request from CHILDREN’S EBOOKS®:
Support either orally – via the Support Hotline Line or in writing via an email or directly logged request;
(b) Upon receiving a request for Support, CHILDREN’S EBOOKS® will use all reasonable efforts to swiftly provide the relevant support in the manner and method determined by CHILDREN’S EBOOKS®.
(c) Access to support is available to registered users who have attended CHILDREN’S EBOOKS® training with a qualified CHILDREN’S EBOOKS® trainer. A new user, who has not been trained, will need to submit a Support request via a CHILDREN’S EBOOKS® trained user in their work site.
(d) Support for Network related issues will be redirect to the client’s IT support and is not part of CHILDREN’S EBOOKS® or CHILDREN’S EBOOKS®Software and App support.
(e) Where CHILDREN’S EBOOKS® has supplied the Maximum Support for an individual request, CHILDREN’S EBOOKS® may in its sole discretion:
continue to provide relevant support in relation to the request (for which CHILDREN’S EBOOKS® may charge the Customer, Client, Agent or Installer any amount that CHILDREN’S EBOOKS® in its sole discretion determines is appropriate); or
cease to provide the relevant support in relation to the request without being in breach of this clause.
10. Improvements to CHILDREN’S EBOOKS®Software and App
(a) CHILDREN’S EBOOKS® may at any time in its sole discretion:
update, upgrade, improve or otherwise modify the CHILDREN’S EBOOKS®Software and App;
make the update, upgrade, improvement or modification to the CHILDREN’S EBOOKS®Software and App available via digital
copy or hard copy;
withhold any update, upgrade, improvement or modification from the Customer, Client, Agent or Installer; and
charge the Customer, Client, Agent or Installer an additional amount for any update, upgrade, improvement or
modification to the CHILDREN’S EBOOKS®Software and App.
(b) The Customer, Client, Agent or Installer may refuse an update, upgrade, improvement or modification to the CHILDREN’S EBOOKS®Software and App, in which case:
CHILDREN’S EBOOKS® will not be liable for any defect, reduction in performance or other failure of the CHILDREN’S EBOOKS®Software and App caused or contributed to by a refusal by the Customer, Client, Agent or Installer to
accept an update, upgrade, improvement or modification; and
the Customer, Client, Agent or Installer agrees that if it accepts any subsequent update, upgrade, improvement or modification to the CHILDREN’S EBOOKS®Software and App, CHILDREN’S EBOOKS® may charge an amount it considers appropriate in its sole discretion that reflects the benefits enjoyed by the Customer, Client, Agent or Installer arising from the rejected update, upgrade, improvement or modification.
(c) Subject to clause 15, nothing in this Agreement requires CHILDREN’S EBOOKS® to update, upgrade, improve or otherwise modify the CHILDREN’S EBOOKS®Software and App.
11. Defects
(a) During the Term, CHILDREN’S EBOOKS® will use all reasonable endeavours to maintain the CHILDREN’S EBOOKS®Software and App in substantial conformity with the description contained in the Proposal and provide the services described in this clause.
(b) If during the Term the Customer, Client, Agent or Installer becomes aware that the CHILDREN’S EBOOKS®Software and App has a defect, it will notify CHILDREN’S EBOOKS® of the defect in writing by 10:00am on the next business day.
(c) The Customer, Client, Agent or Installer will at its own cost cooperate with and assist CHILDREN’S EBOOKS® in investigating and if required rectifying any defect in the CHILDREN’S EBOOKS®Software and App.
(d) Where CHILDREN’S EBOOKS® determines that there is a defect in the CHILDREN’S EBOOKS®Software and App that is unique to the Customer, Client, Agent or Installer, CHILDREN’S EBOOKS® will at the Customer, Client, Agent or Installer’s cost use all reasonable efforts to swiftly remedy the defect in the manner and method determined by CHILDREN’S EBOOKS®.
(e) Where CHILDREN’S EBOOKS® determines that there is a defect in the CHILDREN’S EBOOKS®Software and App that is not unique to the Customer, Client, Agent or Installer:
it will at its own cost use all reasonable efforts to remedy the defect in the manner and method determined by CHILDREN’S EBOOKS®; and
without limiting the steps CHILDREN’S EBOOKS® can take to remedy a non-unique defect, CHILDREN’S EBOOKS® may fulfil its obligation to remedy by:
(1) making an update file or files for the whole or any part of the CHILDREN’S EBOOKS®Software and App available to the Customer, Client, Agent or Installer via the internet;
(2) providing instructions and/or procedures by which the Customer, Client, Agent or Installer can avoid the defect; and
(3) altering or removing that part of the CHILDREN’S EBOOKS®Software and App that causes or materially contributes to the defect.
(f) CHILDREN’S EBOOKS® has no obligation to remedy any defect in the CHILDREN’S EBOOKS®Software and App:
arising from the failure of any computer hardware;
caused or materially contributed to by the Customer, Client, Agent or Installer having:
(1) made an operating error;
(2) used or attempted to use the CHILDREN’S EBOOKS®Software and App in conjunction with a third party program;
(3) copied, modified or reverse assembled or reverse compiled the whole or any part of the CHILDREN’S EBOOKS®Software and App;
(4) combined or incorporated the whole or any part of the CHILDREN’S EBOOKS®Software and App in any other program or
system; or
(5) breached this Agreement;
iii. which is the subject of a warranty under another agreement.
12. Breach and Termination
(a) The Customer, Client, Agent or Installer will be in breach of this Agreement if it:
as a corporation, is insolvent;
as a person, commits an act of bankruptcy;
has an administrator appointed in respect of its affairs or property;
enters or proposes to enter into a scheme, composition or arrangement with any of its creditors;
permanently discontinues use of the CHILDREN’S EBOOKS®Software and App;
as a corporation, has more than 49% of its ownership or controlling rights transferred from one person or entity to another;
or
otherwise fails to perform any of its obligations under this Agreement as and when those obligations fall due.
(b) CHILDREN’S EBOOKS® may give the Customer, Client, Agent or Installer notice in writing of a breach of this Agreement
requiring the Customer, Client, Agent or Installer to remedy the breach within 14 days.
(c) If the Customer, Client, Agent or Installer:
fails to remedy a breach of this Agreement within 14 days of receiving notice;
has breached the Agreement and that breach cannot reasonably be remedied; or
iii has breached the Agreement where it committed a like breach in the 3 months prior to the current breach (regardless of
whether the earlier breach was remedied);
then CHILDREN’S EBOOKS® may:
terminate this Agreement; and/or
suspend the Licence for any definite or indefinite period of time.
(d) If CHILDREN’S EBOOKS® terminates this Agreement under this clause:
this Agreement will be at an end; and
the Customer, Client, Agent or Installer will remain liable for and must pay all Licence Fees for the remainder of the Term.
(e) Termination of the Agreement under this clause is without prejudice to:
the rights and obligations of the parties accrued up to the date of termination; and
any other remedies available to CHILDREN’S EBOOKS® under this Agreement or at law.
13. Disabling Features
(a) At any time CHILDREN’S EBOOKS® may add locking or disabling features to the CHILDREN’S EBOOKS®Software and App, which will activate upon attempted or actual use of the CHILDREN’S EBOOKS®Software and App in breach of this Agreement and prevent:
the use of some or all of the CHILDREN’S EBOOKS®Software and App; or
access to information ordinarily accessed through the CHILDREN’S EBOOKS®Software and App.
(b) The Customer, Client, Agent or Installer agrees that adding locking or disabling features to the CHILDREN’S EBOOKS®Software and App is commercially reasonable and accepts all risk arising from the existence of these features.
(c) CHILDREN’S EBOOKS® will not be liable for any loss or damage suffered by the Customer, Client, Agent or Installer arising
from or connected to the activation of any locking or disabling features of the CHILDREN’S EBOOKS®Software and App.
14. End of Agreement
(a) At the end of this Agreement the Customer, Client, Agent or Installer will immediately return to CHILDREN’S EBOOKS®
the CHILDREN’S EBOOKS®Software and App and all copies of the CHILDREN’S EBOOKS®Software and App, all revisions, modifications, enhancements and upgrades of the CHILDREN’S EBOOKS®Software and App, all Media and all of CHILDREN’S EBOOKS®’ Confidential Information.
(b) Alternatively, at CHILDREN’S EBOOKS®’ request, the Customer, Client, Agent or Installer will destroy the CHILDREN’S EBOOKS®Software and App, copies, revisions, modifications, enhancements and upgrades by permanently erasing them and will certify such destruction in writing to CHILDREN’S EBOOKS ®.
15. CHILDREN’S EBOOKS® Liability
(a) CHILDREN’S EBOOKS® warrants that:
it has the authority to grant the License; and
the CHILDREN’S EBOOKS®Software and App will perform substantially in accordance with the Proposal during the Term.
(b) CHILDREN’S EBOOKS® does not warrant that:
the CHILDREN’S EBOOKS®Software and App will meet the Customer, Client, Agent or Installer’s expectations or
requirements;
the CHILDREN’S EBOOKS®Software and App is free of defects;
the output of the CHILDREN’S EBOOKS®Software and App does or will meet any third party standards or requirements; and
the CHILDREN’S EBOOKS®Software and App will in any way improve the operation of the Customer, Client, Agent or
Installer’s business.
(c) The Customer, Client, Agent or Installer acknowledges and agrees that:
it has exercised its independent judgement in entering into the Agreement and has not relied on any representation made
by CHILDREN’S EBOOKS® or any person on its behalf which is not stated expressly in the Proposal or the Agreement;
by entering into this Agreement CHILDREN’S EBOOKS® has not made or given any representations or any warranties
(expressed or implied) that the CHILDREN’S EBOOKS®Software and App does not and will not infringe the rights of any third
party, including Intellectual Property Rights;
CHILDREN’S EBOOKS® has not agreed to or given any warranties, terms, conditions, undertakings, whether expressed or
implied, written or oral, statutory or otherwise in respect of the CHILDREN’S EBOOKS®Software and App or its services which
are not stated expressly in the Proposal or this Agreement;
the Customer, Client, Agent or Installer enters data into the CHILDREN’S EBOOKS®Software and App or permits the CHILDREN’S EBOOKS®Software and App to access data at the Customer, Client, Agent or Installer’s own risk and the Customer, Client, Agent or Installer remains liable at all times to secure, maintain, archive and otherwise backup separately from the CHILDREN’S EBOOKS®Software and App all data that is entered into the CHILDREN’S EBOOKS®Software and App or accessed by the CHILDREN’S EBOOKS®Software and App;
CHILDREN’S EBOOKS® will not be liable for any dissemination, loss or damage to any data howsoever caused or any loss or damage to the Customer, Client, Agent or Installer arising from the dissemination, loss of or damage to data howsoever caused; and the Customer, Client, Agent or Installer acquires the right to access and use the CHILDREN’S EBOOKS®Software and App and agrees to these terms and conditions for the purposes of a business and that, to the maximum extent permitted by law, any statutory consumer guarantees or legislation intended to protect non-business consumers in any jurisdiction does not apply to the supply of the CHILDREN’S EBOOKS®Software and App or this Agreement.
(d) Except as expressly set out in this clause and to the maximum extent permitted by law, all representations, conditions and warranties (whether express or implied, statutory or otherwise and including warranties as to the merchantable quality or fitness for any particular purpose of the CHILDREN’S EBOOKS®Software and App and support and CHILDREN’S EBOOKS®Software and App updates) are expressly excluded.
(e) Insofar as any condition or warranty regarding the CHILDREN’S EBOOKS®Software and App cannot be excluded, it is limited at the option of the Customer, Client, Agent or Installer to:
the re-delivery of the CHILDREN’S EBOOKS®Software and App; or
the payment of the cost of having the CHILDREN’S EBOOKS®Software and App re-delivered.
(f) Without limiting the generality of the above, to the full extent permitted by law, the Customer, Client, Agent or Installer and
CHILDREN’S EBOOKS® confirm and agree that:
CHILDREN’S EBOOKS®’ maximum liability under this Agreement shall be limited to the amount paid by the Customer, Client,
Agent or Installer to CHILDREN’S EBOOKS® in connection with this Agreement; and
CHILDREN’S EBOOKS® will not, in any event, be liable whether in contract, tort (including negligence) or otherwise for any
indirect, consequential, special or punitive loss damage or expense (including loss of profits and opportunity costs) suffered or incurred by the Customer, Client, Agent or Installer even if CHILDREN’S EBOOKS® has been advised of their possible existence.
16. Customer, Client, Agent or Installer Indemnity
(a) Subject to this clause, CHILDREN’S EBOOKS® indemnifies the Customer, Client, Agent or Installer (and will continue to indemnify the Customer, Client, Agent or Installer) for all loss (including losses, liabilities, penalties, damages, costs, charges and expenses) which the Customer, Client, Agent or Installer may suffer or incur due to a third party alleging that the Children’s E-Books®Software and App infringes the intellectual property rights of that third party.
(b) CHILDREN’S EBOOKS® will not indemnify the Customer, Client, Agent or Installer against any infringement of an intellectual property right of a third party if:
the Customer, Client, Agent or Installer does not notify CHILDREN’S EBOOKS® of the third party’s claim or of infringement of right within seven days after becoming aware of the claim or infringement;
CHILDREN’S EBOOKS®’ ability to defend the claim has been prejudiced by the Customer, Client, Agent or Installer’s noncompliance with any of its obligations under this Agreement;
the Customer, Client, Agent or Installer does not give CHILDREN’S EBOOKS® reasonable assistance in defending the claim;
the infringement has arisen because of the use of the CHILDREN’S EBOOKS®Software and App in combination with
equipment, materials or other computer programs used by the Customer, Client, Agent or Installer without written
approval from CHILDREN’S EBOOKS®; or
the Customer, Client, Agent or Installer does not permit CHILDREN’S EBOOKS® to have control of the defence of the claim and
all related settlement negotiations.
17. CHILDREN’S EBOOKS® Indemnity
The Customer, Client, Agent or Installer indemnifies CHILDREN’S EBOOKS® (and will continue to indemnify CHILDREN’S EBOOKS®) for all loss (including losses, liabilities, penalties, damages, costs, charges and expenses) which CHILDREN’S EBOOKS® may suffer or incur if the loss was caused or contributed to by:
(a) any modification to the CHILDREN’S EBOOKS®Software and App by the Customer, Client, Agent or Installer;
(b) any breach of this Agreement; or
(c) any failure by the Customer, Client, Agent or Installer to comply with any law or regulation.
18. Changes to the Agreement
(a) From time to time CHILDREN’S EBOOKS ® may upon 1 month’s notice in writing to the Customer, Client, Agent or Installer add, remove or otherwise alter any term or condition of this Agreement.
(b) Prior to the expiration of the 1month notice period, the Customer, Client, Agent or Installer may provide notice to CHILDREN’S EBOOKS® objecting to the addition, removal or other alteration to this Agreement.
(c) If the Customer, Client, Agent or Installer does not object to the addition, removal or other alteration to this Agreement within the 1 month notice period, the Agreement will be amended as set out in the notice.
(d) If the Customer, Client, Agent or Installer does object to the addition, removal or other alteration to this Agreement within the said 1 month notice period, CHILDREN’S EBOOKS® may in its sole discretion:
withdraw its notice to add, remove or otherwise alter any term or condition of this Agreement, in which case the Agreement will continue; or
terminate this Agreement.
(e) CHILDREN’S EBOOKS® will not be liable to the Customer, Client, Agent or Installer for any loss or damage incurred by the
Customer, Client, Agent or Installer as a result of CHILDREN’S EBOOKS® terminating this Agreement under this clause.
19. Confidentiality
(a) A party will not, without the prior written approval of the other party, disclose the other party’s Confidential Information unless required by law.
(b) If a party is required by law to disclose any of the other party’s Confidential Information then the disclosing party will give the other party details or a copy of the request for such Confidential Information as received.
(c) Each party will:
keep the other party’s Confidential Information secure from unauthorised access damage or destruction;
not reproduce the Confidential Information in whole or in part;
not use, or attempt to use, any Confidential Information, in any manner other than contemplated by this Agreement; and
ensure that any personnel of their respective personnel who reasonably require access to the Confidential Information
comply with this clause.
(d) Not with standing any other provision of this clause, a party may disclose the terms of this Agreement (other than Confidential Information) to its related companies, solicitors, auditors, insurers and accountants.
(e) The provisions of this clause will not apply to any information which:
is or becomes public knowledge other than by a breach of this clause;
is received from a third party who lawfully acquired it and who is under no obligation restricting its disclosure;
is in the possession of the receiving party without restriction in relation to disclosure before the date of receipt from the
disclosing party; or
is independently developed without access to the Confidential Information.
20. Enticement
(a) The Customer, Client, Agent or Installer will not entice or encourage any CHILDREN’S EBOOKS® employee, consultant or contractor to end their employment or relationship with CHILDREN’S EBOOKS® at any time during the Term or within 12 months of the end of the Term.
(b) The Customer, Client, Agent or Installer will be presumed to have enticed or encouraged anemployee, consultantor contractor if that person accepts employment or engagement with the Customer, Client, Agent or Installer during the Term or within 12 months of the end of the Term.
(c) If the Customer, Client, Agent or Installer has enticed or encouraged a CHILDREN’S EBOOKS® employee, consultant or contractor, in addition to any other remedy under this Agreement or at law, the Customer, Client, Agent or Installer agrees to pay CHILDREN’S EBOOKS® damages equal to:
12 months of the employee, consultant or contractor’s maximum possible salary, wage or cost;
6 months of the employee, consultant or contractor’s maximum possible salary, wage or cost; or
3 months of the employee, consultant or contractor’s maximum possible salary, wage or cost.
21. Entire Agreement
(a) This Agreement supersedes all prior agreements, arrangements and undertakings between the parties and constitutes the entire agreement between the parties relating to the CHILDREN’S EBOOKS®Software and App.
(b) No addition to or modification of any provision of this Agreement will be binding upon the parties unless made by written instrument signed by a duly authorised representative of both parties or otherwise made in accordance with the terms of this Agreement.
(c) Should any part of this Agreement be or become void or unenforceable, if possible that part will be read down so that it is no longer void or unenforceable or otherwise will be severed from this Agreement and will not affect the validity or enforceability of the remainder of this Agreement.
22. Notices
(a) All notices required under the Agreement will be in writing and sent to the address of the recipient set out in the Proposal or such other address as the recipient may designate by notice given in accordance with this clause.
(b) Any notice may be delivered:
by post and such notice will be deemed to have been served 2 business days after posting;
by fax and such notice will be deemed to have been served upon receipt of a successful transmission report;
by email and such notice will be deemed to have been served after 30 minutes in the absence of a failure notification; or
by hand and such notice will be deemed to have been served when delivered.
(c) The parties consent, each with the other, to the receipt of any and all communications electronically.
23. Assignment
(a) The Customer, Client, Agent or Installer will not transfer its rights or obligations under this Agreement (whether by assignment, sub-licensing or otherwise).
(b) CHILDREN’S EBOOKS® may transfer its rights and obligations under the Agreement at any time by notice in writing to the Customer, Client, Agent or Installer.
Law
This Agreement shall be governed by and construed in accordance with the laws for the time being in force in the State of Queensland, Australia and the parties agree to submit to the jurisdiction of the courts and tribunals of that State.
Non-Code Purpose
The Customer, Client, Agent or Installer declares that it enters into and pays all monies required by this Agreement for a wholly or predominantly commercial or business purpose and not wholly or predominantly for a Code purpose as defined in section 13 of the National Credit Code.
Waiver
No forbearance, delay or indulgence by a party in enforcing the provisions of this Agreement shall prejudice or restrict the rights of that party, nor shall any waiver of those rights operate as a waiver of any subsequent breach.
Survival
Clauses 16, 19, 20, 21, 23 and 24 survive the expiry or termination of this Agreement.
DisputeResolution
(a) If the parties dispute any part of this Agreement or an act or omission by a party related to this Agreement they must, prior to the initiation of any legal proceedings, conference in good faith to reach a reasonable and equitable resolution of the dispute.
(b) Neither party may commence legal proceedings unless the parties have conferenced.
(c) Nothing in this clause prevents a party seeking urgent injunctive relief or similar interim orders from a court.
(d) Despite any dispute between the parties, each party must continue to perform its obligations under this Agreement.
29 Interpretation
In this Agreement:
(a) Words importing the singular include the plural and vice versa and words importing one gender shall include all other genders.
(b) Headings are for ease of reference only and shall not affect the interpretation of this Agreement.
(c) The word “including” and related words and the use of examples do not limit the subject to the examples provided.
(d) Words defined in the GST Law have the same meaning in this Agreement, unless the context makes it clear that a different
meaning is intended.
30. Definitions
(a) “Advanced Support” means assistance, direction, guidance, advice and instruction regarding only the installation, maintenance and use of the CHILDREN’S EBOOKS®Software and App that is not Basic Support including reinstalling the CHILDREN’S EBOOKS®Software and App and excludes all direction, guidance, advice and instruction not related the CHILDREN’S EBOOKS®Software and App, including:
the use of any third party program;
the use of any computer hardware;
financial or accounting advice;
commercial or business advice;
human resources advice;
project management advice; and
Customer, Client, Agent or Installer service advice.
(b) “AdvancedSupportFee”meanstheamountsospecifiedintheProposal.
(c) “Agreement” means this agreement.
(d) “Basic Support”means the support so specified in the Proposal.
(e) “ CHILDREN’S EBOOKS®” means CHILDREN’S EBOOKS® Pty Ltd ACN 132 389 443 and includes its officers, employees, agents and assigns.
(f) “Confidential Information” means information that is by its nature confidential relating to CHILDREN’S EBOOKS®, the
CHILDREN’S EBOOKS®Software and App or the Customer, Client, Agent or Installer (as relevant).
(g) “Customer, Client, Agent or Installer” means that person, firm, company, authority or organisation which has entered into
this Agreement to obtain a Licence for the CHILDREN’S EBOOKS®Software and App and includes the Customer, Client, Agent
or Installer’s officers, employees, agents and assigns.
(h) “Customer, Client, Agent or Installer Information” means the various types of in formationon an individual as defined in
Australian privacy legislation.
(i) “Data” means any information the Customer, Client, Agent or Installer enters into the CHILDREN’S EBOOKS®Software and App or allows the CHILDREN’S EBOOKS®Software and App to access.
(j) “Delivery Date” means the date so specified in the Proposal.
(k) “Fee” means the Installation Fee, Licence Fee, Support Fee and Training Fee.
(l) “GST” means:
the same as in the GST Law;
any other goods and services tax, or any tax applying to this Agreement in a similar way; and
any additional tax, penalty tax, fine, interest or other charge under a law of such a tax.
(m) “GST Law” means the same as ‘GST law’ in A New Tax System (Goods and Services Tax) Act 1999 (Cth).
(n) “Installation Fee”means the amount so specified in the Proposal.
(o) “Intellectual Property Rights” means all present and future rights conferred by statute, common law or equity in or in
relation to any copyright, trademarks, designs, patents, circuit layouts, business and domain names, inventions, and other results of intellectual activity in the industrial, commercial, scientific, literary or artistic fields anywhere in the world whether or not registered relating to the CHILDREN’S EBOOKS®Software and App.
(p) “License”means the license of CHILDREN’S EBOOKS®Software and App granted pursuant to the Agreement.
(q) “License Fee”means the amount so specified in the Proposal.
(r) “Location” means the location so specified in the Proposal.
(s) “Maximum Support” means the amount so specified in the Proposal.
(t) “Media” means the media on which the CHILDREN’S EBOOKS®Software and App is recorded or printed.
(u) “Moral Right”means a right:
of attribution of authorship; or
not to have authorship falsely attributed; or
of integrity of authorship; or
of a similar nature; which is conferred by statute, and which exists or comes to exist anywhere in the world in a deliverable
form comprised within this Agreement.
(v) “Proposal” means the schedule of information annexed to this Agreement and titled ‘Proposal’.
(w) “ CHILDREN’S EBOOKS®Software and App” means the computer program and related documentation, infrastructure,
information and know how as specified in the Proposal.
(x) “Stipulated Rate” means the standard business loan rate of CHILDREN’S EBOOKS®’ bank plus 5%.
(y) “Term” means the term of the Agreement as specified in the Proposal.
(z) “Training” means instruction in the use of the CHILDREN’S EBOOKS®Software and App only and excludes all instruction not
related to the CHILDREN’S EBOOKS®Software and App, including the use of any third party program.
(aa “Training Fee” means the amount so specified in the Proposal.
(bb) “Update” means update, upgrade, improve or otherwise modify any part or the whole of the CHILDREN’S EBOOKS®Software
and App including its code, operation and presentation.
(cc) “User” means a person designated by the Customer, Client, Agent or Installer and trained by CHILDREN’S EBOOKS® to operate the CHILDREN’S EBOOKS®Software and App.
Privacy Policy
Introduction
Clauses 36 to 41 form the Privacy Policy for CHILDREN’S EBOOKS® and the CHILDREN’S EBOOKS®Software and App. CHILDREN’S EBOOKS® is bound by the Privacy Act 1988 (Cth) which sets out a number of principles concerning the privacy of individuals.
Customer, Client, Agent or Installer Information
(a) The Customer, Client, Agent or Installer acknowledges that CHILDREN’S EBOOKS ® may generate and/or require use of Customer, Client, Agent or Installer Information.
(b) To access the CHILDREN’S EBOOKS®Software and App and/or support the Customer, Client, Agent or Installer maybe required to submit personally identifiable information to CHILDREN’S EBOOKS® (including a unique username and password or sensitive information to recover a lost password).
(c) The Customer, Client, Agent or Installer grants CHILDREN’S EBOOKS® the right to use, copy, modify, store and disclose the Customer, Client, Agent or Installer Information to the extent necessary to perform its obligations and exercise its rights under the Agreement.
(d) The Customer, Client, Agent or Installer will, to the extent that the Customer, Client, Agent or Installer Information contains information about an individual (as defined in the Privacy Act 1988 (Cth)) (including an employee or contractor of the Customer, Client, Agent or Installer), procure from that individual all necessary consents required by law to enable that information to be used by CHILDREN’S EBOOKS® to supply the CHILDREN’S EBOOKS®Software and App and/or support to the Customer, Client, Agent or Installer.
Updating Customer, Client, Agent or Installer Information
A Customer, Client, Agent or Installer must immediately notify CHILDREN’S EBOOKS® of any changes that may affect the accuracy of any Customer, Client, Agent or Installer Information that CHILDREN’S EBOOKS® may have collected.
Sharing Customer, Client, Agent or Installer Information
(a) CHILDREN’S EBOOKS® may engage third parties to provide services on its behalf (including handling Customer, Client, Agent or Installer support enquiries, processing transactions or Customer, Client, Agent or Installer freight shipping).
(b) Any such third party will be permitted to obtain only the Customer, Client, Agent or Installer Information needed to deliver the service.
(c) CHILDREN’S EBOOKS® will take reasonable steps to ensure that these third parties are bound by confidentiality and privacy obligations in relation to the protection of the Customer, Client, Agent or Installer Information.
35. Changes to Privacy Policy
(a) CHILDREN’S EBOOKS® reserves the right to make amendments to this Privacy Policy at any time.
(b) From time to time, CHILDREN’S EBOOKS® may use Customer, Client, Agentor Installer Information for new, unanticipated uses not previously disclosed in this Privacy Policy.
(c) If CHILDREN’S EBOOKS®’ information practices change at some time in the future it will only use data collected from the time
of the policy change forward in its updated practices.
36. Accessing Customer, Client, Agent or Installer Information
(a) A Customer, Client, Agent or Installer has the right to access its Customer, Client, Agent or Installer Information, subject to exceptions allowed by law.
(b) A Customer, Client, Agent or Installer may request access to its Customer, Client, Agent or Installer Information by providing written notice to CHILDREN’S EBOOKS®.
(c) CHILDREN’S EBOOKS® may charge a fee for searching for, and providing access to, Customer, Client, Agent or Installer Information on a per request basis.
37. Inquiries
If a Customer, Client, Agent or Installer has any questions about this Privacy Policy and would like further information, it may contact CHILDREN’S EBOOKS® using the details below:
Post: Attn: Privacy Policy CHILDREN’S EBOOKS ®
PO Box 178
WILSTON QLD 4051
AUSTRALIA
E-mail: anne@childrensebooks.com.au
