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sQuizya Headquarters

Building 5, 29 Clarice Road
Box Hill South VIC 3128
AUSTRALIA

Call us

+61 3 9899 9065

Email us

info@squizya.com
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Terms of Sale

Please read the following Terms of Sale ("Terms") carefully as the provisions contained in these Terms govern your rights and obligations in respect of the sale and purchase of zApp Books made on or through or in connection with the sQuizya Library (Teachers) or the sQuizya Library (All Users) or any other platforms where the purchase of zApp Books may be made whether now or at any time in the future at the discretion of the Provider, including the platforms My Library and School Library (Teachers) (all such platforms collectively referred to as "Libraries").

These Terms are supplementary to the User Agreement and are incorporated into the User Agreement by this reference. Unless otherwise defined herein, all capitalised terms are defined in the User Agreement.

1.    ACCEPTANCE OF TERMS           

  • 1.1    These Terms are made by and between the following parties:

(a) sQuizya Pty Ltd (ABN 18 751 964 411 / ACN 167 051 354) and its successors and assigns ("Provider");

(b)    any individual or entity that is invoiced or charged by the Provider for the use or access of the Portal by the Purchaser, as the term is defined in sub-clause (c) below ("Account Holder"); and

(c)    any individual or entity who purchases zApp Books ("Purchaser", "you" or "your").           

  • 1.2    By checking on the "I Agree to these Terms of Sale" box prior to purchase, you acknowledge that you have scrolled through, and have read and understood the provisions of these Terms, and you agree, on your own behalf, or on behalf of those you represent, to be bound by the provisions herein as of the time you check the aforesaid box (being the "Effective Date").
  • 1.3    If you do not agree to the provisions of these Terms, you must not check on the "I Agree to these Terms of Sale" box and you will not be permitted to purchase any zApp Books on or through or in connection with the Libraries.

2.    ELIGIBILITY          

  • 2.1    You represent and warrant that:

(a)    you are at least 18 years old;

(b)    you have the capacity to form a binding contract;

(c)    you are not a person barred from accessing or using the Site under the User Agreement; and

(d)    your access or use of the Site or the Portal and/or all Features therein does not violate any applicable law or regulation.

3.    PURCHASE PROCESS          

  • 3.1    Unless otherwise agreed by the Provider in writing, all zApp Books displayed on the Libraries must be purchased through the purchase facility made available with the Libraries only ("Purchase Facility") and your ability to purchase zApp Books will therefore be dependent on whether you have access to the Purchase Facility or otherwise.
  • 3.2    The process for purchases made through the Purchase Facility for all zApp Books is as follows:

(a)    Step 1: all zApp Books ordered by non-Account Holders must be first approved for purchase by the Account Holder. On approval, the Account Holder must add such approved zApp Books to its shopping cart. All zApp Books ordered directly by the Account Holder must be added to the shopping cart (all zApp Books placed on the shopping cart shall be referred to as the "Order" in these Terms);

(b)    Step 2: you must review the Order, including the purchase price and description of zApp Books ("Purchase Price"), to ensure that the Order is accurate, have been added accordingly and is complete;

(c)    Step 3: on review under Step 2, the Account Holder may proceed with the Order by clicking on the "Proceed to Checkout" button;

(d)    Step 4: payment for the Order must then be made ("Payment") through the Online Payment Facility if required under clause 6;

(e)    Step 5: if the Order and, where required,Payment are accepted by the Provider, a message is displayed indicating such acceptance ("Order Acceptance");

(f)    Step 6: on Order Acceptance:     

(i)    a notification will be sent to Your Account ("Purchase Confirmation Notification") together with instructions for accessing the purchased zApp Books ("Access Instructions"); and

(ii)    where relevant, a receipt of Payment ("Receipt") is sent to the Account Holder.     

  • 3.3    For the purposes of these Terms:

(a)    all zApp Books displayed on the Libraries are considered the Provider's 'invitations to treat';

(b)    all Orders represent an offer to purchase zApp Books described in the Order and you and the Account Holder (if different persons) are bound by the Order;

(c)    the Provider shall not be bound by any Orders prior to Order Acceptance,and the Purchaser acknowledges and agrees that the purchase of zApp Books pursuant to an Order is subject to availability. The Provider reserves the right to accept or reject an Order in whole or in part, vary such Order and/or suspend or discontinue the supply any zApp Books in respect of any Order; and

(d)    the sale and purchase of the zApp Books shall be deemed to have occurred on Order Acceptance.

4.    PURCHASE OF LICENCE

  • 4.1    The purchase of zApp Books comprises the purchase of a limited non-exclusive non-transferrable licence ("Licence") by the Purchaser for the access and use of the zApp Books on a computer, electronic device or any other form of locally accessible repository.
  • 4.2    The term of the Licence shall be for the duration of the continued subscription of the Service Plan in accordance with the terms and conditions set out in the User Agreement ("Access Period").
  • 4.3    Each Licence purchased by you may also be subject to the following:

(a)    restrictions imposed by the Licensor ("Licence Restrictions"), if any, including copyright restrictions; and

(b)    compatibility requirements ("Compatibility Requirements"), including, without limitation, requirements as to:

(i)    types of format;

(ii)    types of software, hardware, data or network services; and

(iii)    types of operating systems.

  • 4.4    The Licence Restrictions and Compatibility Requirements for each zApp Books purchased or intended for purchase are displayed on the Libraries as part of the product description of such zApp Books. In accordance with the disclaimer provisions contained in the User Agreement, to the extent that your purchase or non-purchase of zApp Books may be influenced by any Licence Restrictions or any Compatibility Requirements imposed on the zApp Books, you bear the sole and exclusive responsibility to ensure that you have read and understood, and acknowledge and agree to, such Licensing Restrictions and Compatibility Requirements prior to the purchase of such zApp Books in accordance with these Terms.

5.    PURCHASE PRICE

  • 5.1    The Purchase Price of zApp Books is stated in a sale currency of the Purchaser at the currency conversion rate determined by the Provider from time to time as reasonable.
  • 5.2    The Purchase Price may include any direct or indirect taxes charged at the appropriate rate as may be required by relevant laws to be imposed on the purchase of zApp Books in the jurisdiction governing the sale and purchase of zApp Books herein, including goods and services tax, value added tax and sales tax. You are responsible and shall be solely liable for any other taxes, liabilities or duties payable on all purchases of zApp Books made outside of the governing jurisdiction.
  • 5.3    The Provider reserves the right to change the Purchase Price of zApp Books at any time, and does not provide price protection or refunds in the event of a price drop or promotional offering.The Provider shall not be obliged to provide any reasons whatsoever for any changes or revisions to the Purchase Price.

6.    PAYMENT OF PURCHASE PRICE

  • 6.1    Payment of the Purchase Price may only be made through the online payment facility of the Provider ("Online Payment Facility") unless the Provider otherwise expressly permits or agrees for payments to be made on receipt of an invoice issued to the Account Holder by or on behalf of the Provider ("Invoice Me Option").
  • 6.2    Payments made by means of the Online Payment Facility are made using secure data protection processes.  Notwithstanding the aforesaid, the transmission of information through the internet is never entirely secure.  The Provider shall use its best efforts to protect your financial or confidential information but is unable to guarantee the security of any such information submitted or provided by you to the Provider.
  • 6.3    You hereby acknowledge and agree that:

(a)    any submission or provision of information (including provision of credit card information) by you through or in connection with the Online Payment Facility is made at your own risk and that the Provider disclaims any and all liability for, or arising in connection with, any interception, 'hacking' or other unauthorised access of such information by any unauthorised third parties; and

(b)    you are responsible for ensuring that the transaction, credit card information and all other details provided in relation to payment of the Purchase Price or any other related payments made through the Online Payment facility are correct.  The Provider disclaims any and all liability for, or arising in connection with, any incorrect transactions, errors or otherwise caused by factors outside of our control.

  • 6.4    Subject to the other provisions of this clause herein, if for any reason the Provider is held to be liable to you (or the Account Holder or both, if different persons) in relation to the Online Payment Facility, the extent of the Provider's total liability shall be limited to an amount equivalent to only the Purchase Price of the zApp Books to which the transaction made by you through the Online Payment Facility relates.
  • 6.5    In the event that the Invoice Me Option is offered to the Account Holder, the Account Holder shall be required to pay the full amount specified in the relevant invoice within 30 days of the date of the invoice of the same by way of a direct transfer of the amount into the bank account named by the Provider in the said invoice.

7.    DELIVERY AND RISK

  • 7.1    For the purposes of these Terms, "Delivery" shall be deemed to have occurred each time you access the zApp Books in accordance with the Access Instructions as described in Step 6 of the purchase process set out in clause 3.2(f).
  • 7.2    Risk of loss of access to the zApp Books purchased by you shall pass to on expiry of the Access Period.

8.    TITLE IN ZAPPS AND PROPRIETARY RIGHTS

  • 8.1    The title in and to zApp Books remain with the Provider or its licensors at all times. All proprietary rights, title and interests in the zApp Books, including, without limitation, texts, images, photographs, animation, video, audio, music and 'applets' incorporated or embodied in any of the zApp Books, shall belong solely and exclusively to the Provider or its licensors.
  • 8.2    All rights which are not expressly granted to you or any Authorised User under these Terms shall be reserved by the Provider and its Licensors.
  • 8.3    Unless expressly authorised pursuant to the Licence Restrictions or in any copyright notice displayed in the zApp Books ("Copyright Notice"), you hereby acknowledge and agree that:

(a)    you may not copy, modify, translate, publicise, reproduce, exploit, broadcast, transmit, transfer (through file sharing networks or otherwise), distribute, perform, display, rent, lend or sell any of, or any portion of, any zApp Books, or create any derivative works thereof, and you may not use any zApp Books in connection with any commercial endeavours, whether in whole or in part;

(b)    you may only access or use any or all zApp Books within the limitations of the Licence Restrictions and the Copyright Notice and in accordance with these Terms solely for your personal use or for teaching or educational purposes;

(c)    you may not alter any text, graphics, images, audiovisual or any other materials contained in any or all zApp Books;

(d)    you may not modify, reverse engineer, decompile or disassemble any or all zApp Books, whether in whole or in part, or tamper with any digital rights management functionality of any or all zApp Books, where applicable;

(e)    you may not bypass, defeat or circumvent any of the functions or protections embodied in any or all zApp Books or any mechanisms operatively linked to any or all zApp Books, or separate any individual component for use on more than one computer, electronic device or other locally-accessible repository; and

(f)    to the extent that any or all zApp Books are accessed or used by an Authorised User, you shall ensure that such Authorised Users are made aware of, and will observe the Licence Restrictions for each Product.         

  • 8.4    Any unauthorised reproduction, publication, further distribution or public exhibition of the zApp Books, in whole or in part, is strictly prohibited.

9.    REFUND POLICY

  • 9.1    You are not entitled to reject or return the zApp Books purchased by you under these Terms unless both the following conditions have been fulfilled:

(a)    the zApp Books:

(i)    is not in accordance with the Purchase Confirmation Notice; or

(ii)    is in accordance with the Purchase Confirmation Notice but cannot be viewed, accessed or used or is otherwise defective or unmerchantable; and

(b)    you notify us of the details of your claim by way of an email to sales@squizya.com within 3 days of the date of the Purchase Confirmation Notice.

  • 9.2    The Provider shall not be required to accept any rejection or return of zApp Books, or to replace any zApp Books, or to refund the Purchase Price or any part of the Purchase Price to you, where, in the opinion of the Provider:

(a)    you have failed to comply with any of your obligations under these Terms;

(b)    you have failed to access the zApp Books within the Access Period;

(c)    you have failed to review or comply with the Licence Restrictions or the Compatibility Requirements in respect of the zApp Books prior to your purchase;

(d)    you, any Authorised User or any other persons handling, using or dealing with the zApp Books subsequent to Delivery have caused the zApp Books to become damaged, defective or unmerchantable or have failed to take steps to prevent the zApp Books from becoming damaged, defective or unmerchantable.

  • 9.3    Without limiting the generality of clause 9.2, the evolving nature of software and digital formats used in or applicable to zApp Books mean that the Provider is unable to guarantee that the format or software of choice may always be available to you.

10.    EXCLUSIONS OF LIABILITY AND INDEMNITY

  • 10.1    To the fullest extent of the law, the Provider expressly disclaims all conditions, warranties, representations, liabilities and obligations of any kind, whether express or implied, including, but not limited to any conditions or warranties as to:

(a)    merchantability, fitness for a particular purpose or correspondence to particular descriptions in respect of the zApp Books;

(b)    the results procured from the access and use of the zApp Books;

(c)    the fact that such results are accurate, complete or otherwise reliable;

(d)    the functions contained in, or operations of, any zApp Books;

(e)    the fact that the zApp Books will not damage any software, hardware, data or network services; and

(f)    the fact that any such software, hardware, data or network services upon which the zApp Books depends on will continue to be available, uninterrupted or unmodified.

  • 10.2    You expressly understand and agree that the Provider, its subsidiaries, affiliates, officers, agents, co-branders or other partners and employees shall not be liable to you for any indirect, incidental, special, consequential or exemplary damages, including but not limited to damages for:

(a)    damage to property;

(b)    loss of profits or revenue;

(c)    loss of data;

(d)    goodwill;

(e)    other tangible and intangible losses, even if the Provider has been advised of the possibility of such damages, 

                resulting from or arising in connection with the purchase and use of any zApp Books by you or any Authorised User or any other third party under these Terms or under the User Agreement or under any Licence Restrictions.

  • 10.3    You agree to fully indemnify, defend and hold the Provider, and its subsidiaries, affiliates, officers, agents, co-branders or other partners and employees, harmless from any and all claims or demands, liabilities, damages, losses, costs and expenses, including reasonable attorneys' fees, made by any third party due to or arising out of your purchase and use of the zApp Books.
  • 10.4    Subject to any other provisions contained in these Terms, to the extent that the Provider and/or any Licensor is liable under the law in respect of any zApp Books, such liability shall be limited to: 

(a)    the replacement of the zApp Books;

(b)    the supply of any other zApp Books of equal value; or

(c)    the refund of an amount equivalent to the Purchase Price for the zApp Books paid by you if, at the Provider's sole and exclusive opinion, it is unable to replace the zApp Books or resolve the defect.

11.    MODIFICATIONS TO THESE TERMS

  • 11.1    The Provider reserves the right to make any amendments to these Terms at any time in its sole and absolute discretion, with or without notice to you.  The most current version of these Terms as posted on this page shall supersede all previous versions.
  • 11.2    It is your responsibility to check regularly to determine whether a new version of these Terms has been uploaded. If you do not agree to any revisions pursuant to the upload of a new version of these Terms, then you must not place an Order to purchase any zApp Books.
  • 11.3    You agree that the Provider shall not be liable to you or to any third party for any such amendments to these Terms. Your continued Orders after such modifications or amendments shall constitute an acceptance of your agreement to be bound by these Terms, as amended.

12.    SUSPENSION AND TERMINATION

  • 12.1    The Provider may, under certain circumstances and without prior notice, suspend its obligations under these Terms and/or immediately terminate the Licence granted to you.
  • 12.2    Causes for such suspension or termination shall include, but not be limited to:

(a)    breaches or violations of the User Agreement, Privacy Policy, these Terms and/or any other agreements made between you and the Provider or between the Account Holder and the Provider, where relevant;

(b)    requests by law enforcement or other government agencies; and

(c)    unexpected technical or security issues or problems.

  • 12.3    Upon termination of the Licence for any cause whatsoever:

(a)    you must delete and permanently destroy all copies of the zApp Books in your possession, or any part thereof, to which the Licence has been granted; and

(b)    the Provider shall be entitled to any and all remedies available to it under the law.

13.    REPRESENTATIONS AND WARRANTIES

  • 13.1    You represent and warrant that:

(a)    you have the legal right and authority to enter into these Terms;

(b)    you have the legal right and authority to perform your obligations under these Terms; and

(c)    by entering into these Terms, you are not violating or creating a default under any law, rule, regulation, judgment, order, instrument, agreement or charter document binding on you.

14.    NO ASSIGNMENT

  • 14.1    You must not assign any of your rights or obligations under these Terms to any third parties.
  • 14.2    The Provider may, without any notice to you, assign any of its rights or obligations herein to any third party.

15.    NOTICES

  • 15.1    A party notifying or giving notice under this Agreement must give notice:

(a)    in writing;

(b)    with respect to the Provider, to the contact details specified on [insert web page], as may be updated from time to time;

(c)    with respect to you, to the postal address, fax number or email address specified in Your Account, as may be updated by you from time to time.

  • 15.2    A notice given in accordance with this clause is received:

(a)    if left at the recipient's address, on the date of delivery;

(b)    if sent by prepaid post, four (4) days after the date of posting;

(c)    if sent by fax, when the sender's facsimile system generates a message confirming successful transmission of the total number of pages of the notice; and

(d)    if sent by email, when the sender does not receive any failed delivery email notification from either its, or the recipient's, mail server within two (2) days after the date of the email.

16.    GOVERNING LAW

  • 16.1    This Agreement and any obligations arising out of or in relation to Agreement shall be governed by and construed in accordance with the laws of the state of Victoria and the Commonwealth of Australia.

17.    JURISDICTION

  • 17.1    You understand, agree and acknowledge that the courts of the state of Victoria are to have exclusive jurisdiction to settle any dispute (including claims for set-off and counter claims and disputes relating to any non-contractual obligations) which may arise out of or in connection with this Agreement and for such purposes irrevocably submit to the jurisdiction of the aforesaid courts.

18.    ENTIRE AGREEMENT

  • 18.1    These Terms together with the User Agreement, the Privacy Policy and any other incorporated agreements, specifications, guidelines and policies of the Provider constitute the entire agreement between you and the Provider, superseding any prior oral or written proposal, agreements or other communication between you and the Provider with respect to the sale and purchase of zApp Books.
  • 18.2    You are also bound by any additional restrictions or obligations made in any Licence Restrictions or Copyright Notices for any zApp Books purchased by you.
  • 18.3    This Agreement may be modified from time to time by the Provider by way of written notification to you in accordance with clause 15.

19.    WAIVER AND SEVERABILITY OF TERMS

  • 19.1    The failure of the Provider to exercise or enforce any right or provision of these Terms shall not constitute a waiver of such right or provision.
  • 19.2    If any provision of these Terms is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavour to give effect to the parties' intentions as reflected in the provision, and the other provisions of these Terms remain in full force and effect.

User Agreement

Please read the following User Agreement ("Agreement") carefully as the provisions contained herein govern your rights and obligations in respect of the use and access of the digital learning management portal offered, supplied or made available through or in connection with this sQuizya website at www.squizya.com, all tools, content such as text, information and images, programs, applications, templates, software, services and/or materials there of and all updates or modifications to any of the aforesaid (collectively "Portal").

If you are below 18 years old, you must have permission from your parent or legal guardian to access and use this website. Both you and your parent or legal guardian must read this Agreement and our Privacy Policy together before you register or sign up with sQuizya or before you provide any information to us.

1.    ACCEPTANCE OF AGREEMENT

  • 1.1    This Agreement is made by and between the following parties:       

(a) sQuizya Pty Ltd (ABN 18 751 964 411 / ACN 167 051 354) and its successors and assigns ("Provider"); and

(b)    any individual or entity that is invoiced or charged by the Provider for the use or access of the Portal by the User, as the term is defined in sub-clause (c) below ("Account Holder"); and

(c)    anyone, including any Account Holder who is an individual, who uses or accesses the Portal ("User", "you" or "your") from www.squizya.com or any website associated with the Provider, its subsidiaries, associate companies or affiliates (each website being a "Site" in this Agreement).

  • 1.2    By checking on the "I Agree to the terms and conditions of the User Agreement" box prior to using or accessing the Portal, you acknowledge that you have scrolled through, and have read and understood the provisions of this Agreement, and you agree, on your own behalf, or on behalf of those you represent, to be bound by the provisions herein as of the date you check the aforesaid box or the date you first use or access the Portal, whichever date is the earlier (being the "Effective Date").
  • 1.3    If you do not agree to the provisions of this Agreement, you must not check on the "I Agree to the terms and conditions of the User Agreement" box andyou will not be granted a licence to use or otherwise access the Portal.

2.    PORTAL

  • 2.1    The Portal offers comprehensive tools and features that enable Users to access, build, share, offer or receive teaching or learning materials to meet instructional or learning goals. All tools and features of the Portal shall collectively be known as "Features" in this Agreement.
  • 2.2    Unless explicitly stated otherwise, any new or updated features offered or made available from time to time by the Provider in respect of the Portal shall also be subject to the provisions of this Agreement.

3.    GRANT OF LICENCE

  • 3.1    Subject to your compliance with, and during the term of this Agreement, the Provider grants you a limited non-exclusive non-transferrable personal licence ("Licence") for the sole purposes of:

(a)    accessing and using the Portal for business, teaching, instructional or learning purposes or for any other purposes as may be agreed by the Provider, on any computer, laptop, tablet, smart phone or any other device controlled by you (each being a "Device"); and

(b)    operating, accessing and using the Portal and some or all of its Features thereof through the Device for the duration of the period of a service plan subscribed by the Account Holder ("Service Plan").

  • 3.2    Access to and use of the Portal and/or any or all of its Features shall be based on the type of Service Plan subscribed, and fee paid ("Service Plan Fee"), if any, by the Account Holder. Any limitations or restrictions imposed on the access and use of the Portal and/or the Features shall be made at the sole discretion of the Provider without any notice required to be provided to the Account Holder and/or User.
  • 3.3    The period of Service Plan ("Service Plan Period") will be based on an annual duration or such other periods as may be prescribed by the Provider and the Service Plan Fee will vary depending on the type of Service Plan chosen by the Account Holder, including Service Plans that offer access and use of the Portal and/or its Features on a free or complimentary basis without any Service Plan Fee chargeable to the Account Holder.

4.    SERVICE PLAN SUBSCRIPTION

  • 4.1    Upon expiry of the current Service Plan Period, the Account Holder must re-subscribe to the Service Plan in order to regain access and use of the Portal and its Features subject to any limitations or restrictions imposed on the type of Service Plan subscribed to by the Account Holder (each period of re-subscription shall also be known as a Service Plan Period for the purposes of this Agreement).
  • 4.2    The Provider may at its absolute discretion send a reminder notice to the Account Holder to re-subscribe to the Service Plan at any time prior to, on or after the expiry of the current Service Plan Period or may require the implementation of automatic renewals of a Service Plan.Accordingly, the Account Holder expressly acknowledges and agrees:

(a)    that it has the sole responsibility for renewing the Service Plan to ensure that access and use of the Portal or its Features by Users are not interrupted in any way; and

(b)    that it consents to the receipt of reminder notices, if any, communicated by the Provider to the Account Holder and/or the automatic renewal of the Service Plan at the Provider"™s discretion.

  • 4.3    The Service Plan Fee, if any, shall be charged to Account Holder or deducted from the Account Holder through the Online Payment Facility (as the term is described in clause 5) on the first day of each Service Plan Period.
  • 4.4    The Account Holder may cancel a Service Plan subscription at any time by giving the Provider one (1) month"™s prior written notice of cancellation to subscriptions@squizya.com. All cancellations will take effect at the end of the current Service Plan Period. The Service Plan Fee paid or payable by the Account Holder in respect of the current Service Plan Period will not be refunded by the Provider, including Service Plan Fee paid or deducted from the Account Holder on the automatic renewal of the Service Plan.In the event of a request for re-subscription by the Account Holder after expiry of the current Service Plan Period, the Provider further reserves the right to charge an administrative fee for the said re-subscription.
  • 4.5    The Provider will not be responsible, and disclaims all liability, for any losses, damages, errors and/or adverse consequences suffered by any User as a result of the cancellation and/or re-subscription of a Service Plan and/or Provider"™s inability to deduct through the Online Payment Facility any amounts due and owing to the Provider and the consequent failure of the Account Holder to subscribe or re-subscribe to the Service Plan, and the User"™s inability to access and/or use the Portal or its Features.

5.    PAYMENT OF SERVICE PLAN FEE

  • 5.1    Payments of the Service Plan Fee and any and all renewals thereof may only be made through the online payment facility of the Provider ("Online Payment Facility") unless the Provider otherwise expressly permits or agrees for payments to be made on receipt of an invoice issued to the Account Holder by or on behalf of the Provider ("Invoice Me Option").
  • 5.2    Payments made by means of the Online Payment Facility are made using secure data protection processes.  Notwithstanding the aforesaid, the transmission of information through the internet is never entirely secure.  The Provider shall use its best efforts to protect the Account Holder's financial or confidential information but is unable to guarantee the security of any such information submitted or provided through or in connection with the Website.
  • 5.3    The Account Holder hereby acknowledges and agrees that:

(a)    any submission or provision of information (including provision of credit card information) by the Account Holder through or in connection with the Online Payment Facility is made at the Account Holder"™s own risk and that the Provider disclaims any and all liability for, or arising in connection with, any interception, 'hacking' or other unauthorised access of such information through the Website by any unauthorised third parties; and

(b)    the Account Holder is responsible for ensuring that the transaction, credit card information and all other details provided in relation to payments of the Service Plan Fee made through the Online Payment facility are correct.  The Provider disclaims any and all liability for, or arising in connection with, any incorrect transactions, errors or otherwise caused by factors outside of our control.

  • 5.4    Subject to the other provisions of this clause herein, if for any reason the Provider is held to be liable to the Account Holder in relation to the Online Payment Facility, the extent of the Provider"™s total liability shall be limited to an amount equivalent to only the applicable transaction made by the Account Holder through the Online Payment facility at the relevant time.
  • 5.5    In the event that the Invoice Me Option is offered to the Account Holder, the Account Holder shall be required to pay the full amount specified in the relevant invoice within 30 days of the date of the invoice by way of a direct transfer of the amount into the bank account named by the Provider in the said invoice.
  • 5.6    The Provider reserves sole and absolute right to revise the Service Plan Fee at any time without notice to the Account Holder or to the User, and the Provider shall not be obliged to provide any reasons whatsoever for such revisions.  Any revisions to the Service Plan Fee shall take effect on the next Service Plan Period upon expiry of the current Service Plan Period.

6.    USER NAME AND PASSWORD

  • 6.1    On payment of the Service Plan Fee, depending on the type of Service Plan chosen, the Account Holder will be given an access codes ("Access Codes") from the Provider to gain access and use of the Portal and its Features. The Account Holder has the complete and sole discretion to supply the Access Codes to any persons and to change or modify the Access Codes as and when it desires. The Provider will not be responsible, and disclaims all responsibility, for any omissions or failures by the Account Holder to supply the Access Codes or new or modified Access Codes to any persons, including any Users, or for any losses, damages, errors and/or adverse consequences of such omission or failure.
  • 6.2    On initial access of the Portal using the Access Code supplied to the Account Holder, all Users are required to create an account comprising a username and personal password ("Your Account") in order to continue the access and use of the Portal.
  • 6.3    You are responsible for maintaining the security and confidentiality of Your Account, the username and the password, and are fully responsible for all activities that occur under the same.
  • 6.4    You agree to:

(a)    access Your Account for your own use only;

(b)    immediately notify the Provider and the Account Holder of any unauthorised use of Your Account, login or password or any other breach of security; and

(c)    ensure that you logout from Your Account at the end of each session.

  • 6.5    The Provider will not be responsible, and disclaims all responsibility, for any losses, damages, errors and/or adverse consequences arising from your failure to comply with this clause.

7.    INTELLECTUAL PROPERTY RIGHTS "“ PROVIDER

  • 7.1    All intellectual property rights, title and interests in the Portal and/or any or all of its Features, including, without limitation, texts, images, photographs, animation, video, audio, music and 'applets' created by or for and on behalf of the Provider and published, incorporated or embodied in the Portal or any Features, shall belong solely and exclusively to the Provider.
  • 7.2    All rights which are not expressly granted to the Account Holder or User under this Agreement shall be reserved by the Provider.
  • 7.3    Unless expressly authorised by the Provider, you hereby acknowledge and agree that:
  • 7.4    The name, logo, images and icons of the Provider as may be created, produced or used from time to time for or in connection with the Portal ("Marks") are trademarks or registered trademarks of the Provider and its affiliated companies. Without express and written prior permission, you agree not to display or use in any manner the Marks for any purpose whatsoever.

8.    INTELLECTUAL PROPERTY RIGHTS "“ THIRD PARTIES

  • 8.1    The Portal and/or its Features may contain content subject to intellectual property rights of third parties.
  • 8.2    All such rights are proprietary to their respective holders. Unless otherwise expressly permitted in writing by the intellectual property rights holders, you are expressly prohibited from taking any action that may infringe on the rights, including any of the actions set out in clause 7.3.

9.    SITE ACCESS

  • 9.1    The Portal and its Features are offered, supplied and made available through or in connection with the Site on an "as-is" and "as available" basis, and are supported by third party hosting services,including private third party hosting service providers. Accordingly, the Provider assumes no responsibility for the timeliness, deletion, mis-delivery or failure to store any data, information, communications or personalised settings made by the User in respect of the Portal and/or its Features.
  • 9.2    You understand that you are responsible for obtaining access to the Site and that access may involve third party fees (such as Internet service provider or airtime charges). You are solely liable for those fees and must provide and are responsible for all equipment necessary to access the Site.
  • 9.3    You may not:

(a)    forge headers or otherwise manipulate identifiers in order to disguise the origin of any content or data transmitted through the Site;

(b)    disrupt the normal flow of dialogue, cause a screen to "scroll" faster than other Users are able to type, or otherwise act in a manner that negatively affects other Users"™ ability to engage in real time exchanges;

(c)    manipulate or bypass the Site"™s systems for any reason whatsoever, including bypassing of any restrictions or limits placed on the third party hosting service providers;

(d)    interfere with or disrupt the Site or any systems connected to the Site or disobey any requirements, procedures, policies or regulations of networks connected thereof;

(e)    take any action that places an unusually large load on the infrastructure of the Site, or bandwidth connecting to the Site, or take any action that includes the use of any data accumulation, tool, robot or spider to compile, disseminate, extract, process, monitor or copy any web pages; and

(f)    intentionally or unintentionally violate any applicable local, state, national or international law.

  • 9.4    The Provider has no control over the actions or inactions of the third party hosting service providers, and you agree that the Provider will not in any way be responsible for any loss or damage incurred by you as a result of such action or inaction, including hosting faults such as delayed server response times and server down times.

10.    CONTENT OF PORTAL AND ITS FEATURES

  • 10.1    All content of the Portal and/or its Features are also supplied on an "as is" and "as available" basis with no warranties whatsoever that have been given by the Provider and the Provider makes no guarantee, representation or warranty regarding the timeliness, reliability, accuracy, completeness, correctness or usefulness of the Portal or its Features or any parts thereof.
  • 10.2    Provider Content: Content may include those compiled by the Provider ("Provider Content"). In viewing Provider Content through or in connection with the Portal and/or its Features, you hereby acknowledge and agree that:  

(a)    all Provider Content are provided for information only, and no reliance on such Provider Content may be placed by you or any other person in your decision to access or use the Portal or its Features, or to subscribe or re-subscribe to a Service Plan, including paid or free Service Plans;

(b)    under no circumstances will the Provider be liable in any way for any Provider Content, including, but not limited to, for any errors or omissions in the Provider Content, or for any loss or damage of any kind incurred as a result of the use of the Provider Content.  You are not entitled to use such Provider Content as a basis for any cause of action in law or otherwise;

(c)    the Provider Content may be subject to change or may be updated or may expire without notice and does not take into account your objectives, personal or commercial situation, requirements or needs, or any statutory obligations or requirements which may be required to be observed in your location or jurisdiction.

  • 10.3    Third Party Content: Content may include a variety of educational resources and other types of content supplied by third parties as well as information on products and resources such as zApps or zApp Books, which may be accessed freely or by paying a fee ("Third Party Content").  In viewing Third Party Content through or in connection with the Portal and/or its Features, you hereby acknowledge and agree that:

(a)    the Provider does not in any way guarantee the accuracy, integrity, completeness, quality or authenticity of the information contained in any third Party Content or compliance of such Third Party Content with any laws or regulations of any one country or jurisdiction, and no person may rely on such Third Party Content;

(b)    you are required to communicate directly with the Third Party if you wish to rely on any Third Party Content, including information relating to any resources, materials, services and/or promotions published, offered or made available by the Third Party through or in connection with the Portal;

(c)    in permitting Third Parties to display Third Party Content, the Provider does not in any way recommend any product or service of Third Party, or approve, or act on behalf of, any Third Party;

(d)    the Provider has no control, authority or influence over any Third Party and cannot be held liable over the acts or omissions of the same and the Provider disclaims all liability arising from any loss or damages suffered by you or any other person as a result of your reliance on such Third Party Content or your correspondence or dealings with a Third Party.

  • 10.4    User Content:With respect to any content or data uploaded or entered into the Portal or any Features thereof by you or any other User ("User Content"), the Provider is under no obligation to monitor any User Content uploaded or entered by you or any other user.  Accordingly, you hereby acknowledge and agree that:

(a)    you are solely and entirely responsible for the User Content you upload or enter into the Portal;

(b)    you must not upload or enter or otherwise make available through or in connection with the Portal or any Features thereof that:

(i)    is unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, pornographic, obscene, libellous or otherwise objectionable;

(ii)    you do not have a right to make available under any law or under contractual or fiduciary relationships;

(iii)    infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party;

(iv)    comprises "junk mail," "spam," "chain letters," "pyramid schemes," or any other form of solicitation;

(v)    contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment, including the Portal itself or any Features thereof; or

(vi)    purports to impersonate any other person or entity or falsely state or otherwise misrepresent your affiliation with any person or entity.

(c)    the Provider shall have the right (but not the obligation) in their sole discretion to pre-screen, refuse, or remove any User Content that is made available by you through or in connection with the Portal and/or its Features;

(d)    the Provider may also access, preserve, and disclose all User Content if required to do so by law or in a good faith belief that such access preservation or disclosure is reasonably necessary to:

(i)    comply with legal process;

(ii)    enforce this Agreement;

(iii)    respond to your requests for customer service; and

(iv)    protect the rights, property, or personal safety of the Site, the Portal, the Features, other Users and/or the public; 

(e)    you are encouraged to back-up your User Content to minimise risk of loss or damage arising from the inability to download, access or otherwise use such User Content through or in connection with the Portal and/or any Features thereof. The Provider shall not be in any way responsible for any loss or damage to your User Content for any reason whatsoever;

(f)    all User Content uploaded, entered into and/or displayed on the Portal are the responsibility of their authors including any User Content published by your educational institution, your teacher or instructor and/or any other Users or third parties who may be responsible for providing or supplying educational resources to you. The Provider does not in any other way control such User Content nor does the Provider in any way guarantee the accuracy, integrity, completeness, quality or authenticity of the same.. The Provider shall not be in any way responsible for any loss or damage suffered by you or any other person as a result of your reliance on such User Content or your communications or dealings with any other User.

11.    SUSPENSION AND TERMINATION

  • 11.1    The term of this Agreement shall commence on Effective Date and shall continue for the duration of the Service Plan Period and for as long as you continue to access and/or use the Portal, whether on a subscription basis or otherwise, unless earlier terminated in accordance with the other provisions of this clause.
  • 11.2    This Agreement may be suspended for any duration or terminated immediately by the Provider without notice to you on the occurrence of the following events:

(a)   breaches or violations of this Agreement or the Privacy Policy;

(b)    where applicable, breaches or violations of the Self-Publishing Agreement or the Terms of Sale of the Provider and all guidelines, specifications and policies incorporated thereof;

(c)    requests by law enforcement or other government agencies;

(d)    discontinuance of the Portal or any part thereof by the Provider;

(e)    unexpected technical or security issues or problems; and

(f)    any force majeure events occurring to the Provider.

  • 11.3    Upon termination of this Agreement, all rights granted to you under this Agreement shall cease with immediate effect and Your Account will be closed. You must immediately discontinue all access to and use of the Portal and its Features thereof and any other content downloaded or otherwise obtained through the Portal.
  • 11.4    The Account Holder will not be entitled to a refund of the Service Plan Fee or any portion thereof if this Agreement is suspended or terminated for any reason whatsoever that is not due to the negligence of the Provider and the Provider shall not be liable for any loss or damage suffered by you or any third party in any way in respect of such suspension or termination.
  • 11.5    Clauses 6 to 9 and all disclaimers and limitations of liability as they apply to the rights granted by the Provider and the restrictions placed on you herein shall survive the termination or expiration of this Agreement for any reason.

12.    EXCLUSIONS OF LIABILITY AND INDEMNITY

  • 12.1    To the fullest extent of the law, the Provider expressly disclaims all conditions, warranties, representations, liabilities and obligations of any kind, whether express or implied, including, but not limited to any conditions or warranties as to:

(a) merchantability, fitness for a particular purpose or correspondence to particular descriptions in respect of the Portal or any of its Features;

(b)    the results procured from the access and use of the Portal and its Features;

(c)    the fact that such results are accurate, complete or otherwise reliable;

(d)    the functions contained in, or operations of, any Features;

(e)    the fact that the Portal or its Features will not damage any software, hardware, data or network services, including any Device; and

(f)    the fact that any such software, hardware, data or network services upon which the Portal depends on will continue to be available, uninterrupted or unmodified.

  • 12.2    You expressly understand and agree that the Provider, its subsidiaries, affiliates, officers, agents, co-branders or other partners and employees shall not be liable to you for any indirect, incidental, special, consequential or exemplary damages, including but not limited to damages for:

(a)    damage to property;

(b)    loss of profits or revenue;

(c)    loss of data;

(d)    goodwill;

(e)    other tangible and intangible losses, even if the Provider has been advised of the possibility of such damages, 

 

                resulting from or arising in connection with the access and use of the Portal by you or any other person under this Agreement.

  • 12.3    The Provider,its subsidiaries, affiliates, officers, agents, co-branders or other partners and employees shall also not be liable to you for any delay, interruption or other failure to perform under this Agreement due to acts beyond its reasonable control for so long as such conditions persist. Force majeure events include, but are not limited to, natural disasters (e.g., lightning, earthquakes, hurricanes, floods), wars, riots, terrorist activities, and civil commotions; activities of local exchange carriers, telephone carriers, wireless carriers, Internet service providers, and other third parties; explosions and fires, embargoes, strikes, and labour disputes, governmental decrees and any other cause beyond the reasonable control of the Provider.
  • 12.4    You agree to fully indemnify, defend and hold the Provider, and its subsidiaries, affiliates, officers, agents, co-branders or other partners and employees, harmless from any and all claims or demands, liabilities, damages, losses, costs and expenses, including reasonable attorneys' fees, made by any third party due to or arising out of your breach of any provisions of this Agreement.
  • 12.5    Subject to the provisions contained in this Agreement, if the Provider is liable under the law in respect of the Portal or any Features for any reason whatsoever, such liability shall be limited to:

(a)    the supply of access to the Portal again on the same terms and conditions set out in this Agreement;or

(b)    the refund to the Account Holder of an amount equivalent to the last Service Plan Fee paid by the Account Holder if, at the Provider"™s sole and exclusive opinion, it is unable to supply the access to Portal again to the Account Holder, or to resolve the defect.

13.    CONFIDENTIAL INFORMATION

  • 13.1    For the purposes of this clause:

(a)    "Confidential Information" means any and all of the following:

(i)    all intellectual property rights, trade secrets, the Provider or the Account Holder"™s business, products and services, finances, customer names, sales figures, employee details, pricing methodologies, and any other information relating to the Provider or the Account Holder"™s internal operations, plans, policies, and practices and transactions in whatever media;

(ii)    other information identified in writing as confidential by either the Provider or the Account Holder; and

(iii)    translations, enhancements, corrections, modifications, derivative works, copies, forms, embodiments and additions of and any of the foregoing;

(b) "Disclosing Party" means the party that owns or that has a right to disclose Confidential Information; and

(c) "Recipient" means the party that receives such Confidential Information.

  • 13.2    Each party herein acknowledges and agrees that, subject to any other provisions of this Agreement, they:

(a)    must keep Confidential Information confidential;

(b)    may use Confidential Information, but only in relation to this Agreement unless permission or consent is otherwise expressly granted by the Disclosing Party for any other use pursuant to any other contracts made between the Disclosing Party and the Recipient;

(c)    may disclose Confidential Information to enable it to perform its obligations under this Agreement but only to its employees or contractors to the extent that they have a need to know;

(d)    must not copy the Confidential Information or any part of it other than as strictly necessary for the purposes of this Agreement;

(e)    must implement security practices against any unauthorised copying, use, disclosure (whether such disclosure is in writing, oral, or any other form), access, damage, or destruction;

(f)    must immediately notify the Disclosing Party if the Recipient suspects or becomes aware of any unauthorised copying, use or disclosure in any form, and

(g)    must comply with the reasonable directions of the Disclosing Party in relation to the Confidential Information.

  • 13.3    The Recipient will not be obliged to treat as confidential any information received from the Disclosing Party which:

(a)    is rightfully known to the Recipient prior to its disclosure by the Disclosing Party;

(b)    is generally known or easily ascertainable by third parties;

(c)    is released by the Disclosing Party in writing to any other person, firm or entity without restriction;

(d)    is independently developed by the Recipient without any reliance on the Confidential Information of the Disclosing Party; or

(e)    is or later becomes publicly available or may be lawfully obtained by the Recipient from any third party.       

  • 13.4    The Recipient may also disclose any Confidential Information received under this Agreement pursuant to any applicable law, regulation, or court order, provided that such disclosure must be limited to the minimum acceptable level of disclosure and that the Recipient notifies the Disclosing Party as soon as reasonably practicable (unless restricted by law), of the imminent disclosure.
  • 13.5    Nothing in this clause shall operate to prevent a party from providing details of this Agreement to its employees, contractors, agents, advisors and consultants.
  • 13.6    If a Recipient breaches any of its obligations under this clause:

(a)    it agrees and consents to the granting of injunctive relief by any court having jurisdiction over the enforcement of this Agreement restraining its breach of this clause and restraining it from disclosing any Confidential Information; and

(b)    it will indemnify and hold harmless the Disclosing Party from any and all loss or damage sustained by the Disclosing Party by virtue of the Recipient's breach of this clause, including but not limited to the cost involved of obtaining injunctive relief as aforesaid.

  • 13.7    Immediately upon the earlier of:

(a)    you have the legal right and authority to enter into this Agreement;

(b)    you have the legal right and authority to perform your obligations under this Agreement;

(c)    by entering into this Agreement, you are not violating or creating a default under any law, rule, regulation, judgment, order, instrument, agreement or charter document binding on you; and

(d)    all information or data supplied to the Provider in connection with this Agreement and your download, installation, use and access of the Portal or its Features are accurate, complete and current.

14.    LICENSEE REPRESENTATIONS

  • 14.1    You represent and warrant that:

(a)    you have the legal right and authority to enter into this Agreement;

(b)    you have the legal right and authority to perform your obligations under this Agreement;

(c)    by entering into this Agreement, you are not violating or creating a default under any law, rule, regulation, judgment, order, instrument, agreement or charter document binding on you; and

(d)    all information or data supplied to the Provider in connection with this Agreement and your download, installation, use and access of the Portal or its Features are accurate, complete and current.

15.    OFF SITE LINKS

  • 15.1    The Site or Portal may provide, or third parties may provide, links to other external websites or resources.
  • 15.2    You understand and acknowledge the Provider has no control over such websites and resources.  You further acknowledge and agree that the Provider is not responsible for the availability of such external websites or resources, and does not endorse and is not responsible or liable for any content, advertising, products, services or other materials on or available from such websites or resources.
  • 15.3    You also acknowledge and agree that the Provider shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or services available on or through any such external website or resource.

16.    NOTICES

  • 16.1    A party notifying or giving notice under this Agreement must give notice:

(a)    in writing;

(b)    with respect to the Provider, to the contact details specified on [insert webpage], as may be updated from time to time;

(c)    with respect to you, to the postal address, fax number or email address specified in Your Account, as may be updated by you from time to time.

  • 16.2    A notice given in accordance with this clause is received:

(a)    if left at the recipient's address, on the date of delivery;

(b)    if sent by prepaid post, four (4) days after the date of posting;

(c)    if sent by fax, when the sender's facsimile system generates a message confirming successful transmission of the total number of pages of the notice; and

(d)    if sent by email, when the sender does not receive any failed delivery email notification from either its, or the recipient"™s, mail server within two (2) days after the date of the email.

17.    PRIVACY POLICY

  • 17.1    The use of any personal data collected from you is subject to the Provider's Privacy Policy found at , which is incorporated into this Agreement by reference.

18.    NO ASSIGNMENT

  • 18.1    You must not assign any of your rights or obligations under this Agreement to any third parties.
  • 18.2    The Provider may, without any notice to you, assign any of its rights or obligations herein to any third party.

19.    GOVERNING LAW

  • 19.1    This Agreement and any obligations arising out of or in relation to Agreement shall be governed by and construed in accordance with the laws of the state of Victoria and the Commonwealth of Australia.

20.    JURISDICTION

  • 20.1    You understand, agree and acknowledge that the courts of the state of Victoria are to have exclusive jurisdiction to settle any dispute (including claims for set-off and counter claims and disputes relating to any non-contractual obligations) which may arise out of or in connection with this Agreement and for such purposes irrevocably submit to the jurisdiction of the aforesaid courts.

21.    ENTIRE AGREEMENT

  • 21.1    This Agreement and the Privacy Policy constitute the entire agreement between you and the Provider, superseding any prior oral or written proposal, agreements or other communication between you and the Provider with respect to your access and/or use of the Portal and its Features.
  • 21.2    In addition to this Agreement and the Privacy Policy, your rights and obligations in respect of all zApps published, distributed and offered for sale, and the sale and purchase of such zApps by Users shall be governed by the following, both of which are incorporated into this Agreement by this reference:

(a)    Publishing and Distribution Agreement and all guidelines, specifications and policies of the Provider referred to in the Publishing and Distribution Agreement; and

(b)    Terms of Sale.

  • 21.3    This Agreement may be modified from time to time by the Provider by way of written notification to you in accordance with clause 16.

22.    WAIVER AND SEVERABILITY OF TERMS

  • 22.1    The failure of the Provider to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision.
  • 22.2    If any provision of this Agreement is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavour to give effect to the parties' intentions as reflected in the provision, and the other provisions of this Agreement remain in full force and effect.

Publishing and Distribution Agreement

This Publishing and Distribution Agreement ("Agreement") governs your rights and obligations in respect of all materials published as a zApp or a zApp Book (both referred to as "zApps" in this Agreement) on the following platforms (collectively "Libraries"):

  • (a) My Library;
  • (b) School Library (Teachers);
  • (c) sQuizya Library (Teachers); and
  • (d) sQuizya Library (All Users).

This Agreement and all guidelines, specifications and policies of the Provider referred to this Agreement are supplementary to the User Agreement and are incorporated into the User Agreement by this reference. Unless otherwise defined herein, all capitalised terms are defined in the User Agreement.

1. ACCEPTANCE OF AGREEMENT

  • 1.1 This Agreement is made by and between the following parties:
    • (a) sQuizya Pty Ltd (ABN 18 751 964 411 / ACN 167 051 354) and its successors and assigns ("Provider");
    • (b) any individual or entity that is invoiced or charged by the Provider for the use or access of the Portal, into which payment of Author Royalties is made in accordance with clause 7.4(e)(ii) ("zApps Account Holder"); and
    • (c) any individual or entity who is the creator and/or author of zApps ("Author", "you" or "your").
  • 1.2 By checking on the "I Agree to the terms and conditions of the Publishing and Distribution Agreement" box prior to publication, you acknowledge that you have scrolled through, and have read and understood the provisions of this Agreement, and you agree, on your own behalf, or on behalf of those you represent, to be bound by the provisions herein as of the date you check the aforesaid box or the date you publish your first zApp, whichever date is the earlier (being the "Effective Date").
  • 1.3 If you do not agree to the provisions of this Agreement, you must not check on the "I Agree to the terms and conditions of the Publishing and Distribution Agreement" box and you will not be permitted to publish any zApps on the Libraries.

2. ELIGIBILITY

  • 2.1 You represent and warrant that:
    • (a) you are at least 18 years old;
    • (b) you have the capacity to form a binding contract;
    • (c) you are not a person barred from accessing or using the Site under the User Agreement; and
    • (d) your access or use of the Site or the Portal and/or all Features therein does not violate any applicable law or regulation.

3. ZAPPS AND LIBRARIES

  • 3.1 The zApp Creator is one of the unique Features offered by the Provider that is made available through or in connection with the Portal, the access and use of which is governed by the User Agreement. The zApp Creator enables Authors to create materials, resources and/or books as zApps.
  • 3.2 These zApps may be published, distributed and offered for use on one or more of the Libraries. Each of the Libraries may be accessed by one or more categories of Users as follows:
    • (a) My Library - accessed by the Author and any other Users permitted by the Author at the Author's discretion only;
    • (b) School Library (Teachers)and sQuizya Library - accessed by the Author and all Users who are registered or designated as "Teachers" with respect to their own account under the User Agreement; and
    • (c) sQuizya Library (All Users) - accessed by the Author and all Users.
  • 3.3 Unless explicitly stated otherwise, the publication and distribution of all zApps to Users on or in connection with any new or updated Libraries made available from time to time by the Provider shall also be subject to the provisions of this Agreement.

4. REQUIREMENTS FOR PUBLICATION ON THE LIBRARIES

  • 4.1 All zApps created by you for publication on the Libraries must comply with the requirements set out in this clause.
  • 4.2 Information requirements: You must include or provide the following information with all zApps published on the Libraries:
    • (a) copyright notice that conforms with the notice requirements of the Provider ("Copyright Notice"):
      1. for non-restricted publications: "All rights reserved. You are free to reproduce, modify, extract and share work from this zApp into another zApp within the sQuizya platform. No part of this zApp may be reproduced, stored or transmitted into another application outside of the sQuizya platform, in any form or by any means: electronic, mechanical, photocopying, recording or otherwise"; and
      2. for restricted publications: "All rights reserved. You are free to reproduce, modify, extract and share work from this zApp into another zApp within the sQuizya platform, for use within your institution only. The resulting zApp cannot be shared outside of the institution in which it was altered. No part of this zApp may be reproduced, stored or transmitted into another application outside of the sQuizya platform, in any form or by any means: electronic, mechanical, photocopying, recording or otherwise".
    • (b) if you intend to share your zApps under the sQuizya Author Royalty Program, the PayPal account details of the zApps Account Holder into which all payments of royalties will be deposited in accordance with clause 7.5(b);
    • (c) any other information as may be requested by the Provider.
  • 4.3 Content requirements:You must not publish any zApps content including text, images, illustrations and any other audio-visual material (collectively "zApps Content") that:
    • (a) is primarily intended for the purpose of advertising, promoting or soliciting of any products or services of any type or nature;
    • (b) is unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, pornographic, obscene, libellous, invasive of another's privacy, hateful, or racially, ethnically or otherwise objectionable;
    • (c) you do not have a right to make available under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under non-disclosure agreements);
    • (d) infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party;
    • (e) comprises unsolicited or unauthorised advertising, promotional materials, "junk mail," "spam," "chain letters," "pyramid schemes," or any other form of solicitation, except in those areas that are designated for such purpose;
    • (f) contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
    • (g) purports to impersonate any other person or entity, including, but not limited to, any other User, the Provider's official, employee, consultant, guide, host or any other representative, or falsely state or otherwise misrepresent your affiliation with any person or entity;
    • (h) fails to comply with any codes of practice issued by any relevant governing board or authority;
    • (i) is inaccurate or incomplete, or inaccurately or incompletely described, or contains metadata or any other computer code that is inaccurate or incomplete;
    • (j) is not delivered to the User in its entirety or is delivered with the condition that additional purchases should be required to peruse any part or all of the zApps Content; and
    • (k) fails to comply with the User Agreement, the Privacy Policy and any other zApps Content policies of the Provider that is made known to you from time to time including any copyright policy of the Provider.
  • 4.4 Technical requirements:You must comply with all technical guidelines, specifications and policies of the Provider made known to you from time to time (collectively "Instructions").
  • 4.5 Approval requirements: All zApps intended for publication on the sQuizya (Teachers) or sQuizya (All Users) Libraries must be submitted to the Provider for approval prior to such publication. You will be notified by email on any decisions made by the Provider and the Provider shall have the absolute discretion to approve or reject or impose conditions for approval as it thinks fit, with or without any reasons being made known to you.
  • 4.6 You bear the sole responsibility for any errors or omissions caused by non-compliant zApps including but not limited to errors in, or poor quality of, the display of zApps on the Libraries and shall be liable to the Provider for any loss or damage caused to the Site, the Portalor its Features thereof or the Site's computer servers as a result of such non-compliance.
  • 4.7 You further agree that you shall be liable to the Provider, and shall indemnify the Provider, against any and all claims, demands, losses, damages and costs that the Provider incurs or may incur as a result of a failure to comply with any requirements herein or a breach of any of your obligations and warranties in this Agreement.
  • 4.8 You must immediately report any zApps that are in breach or in violation of any of the requirements in this clause and request for immediate removal of such zApps from all Libraries from the Provider.You must rectify such breach or violation prior to the re-publication of the zApps on the Libraries.
    • (a) the Provider is entitled to demand from you any additional information required on the zApps and may request that you include such additional information in any zApps published or intended for publication on any of the Libraries;
    • (b) you represent and warrant that any information or documentation you supply to the Provider or any information you publish as part of the information requirements set out in clause 4.2 is complete, current and accurate and you authorise the Provider, its authorised representatives, agents or third party service providers, to make any inquiries deemed necessary by the Provider to verify the accuracy of information supplied and/or your rights and entitlements to publish the zApps;
    • (c) the Provider reserves the sole and exclusive right to remove all zApps that fail to comply with the requirements or demands or requests by the Provider herein.
  • 4.10 Any review or approval of zApps by the Provider (where relevant) shall not be deemed to constitute acceptance that such zApps have been submitted or published by you in accordance with the requirements herein, nor shall it constitute a waiver of the rights of the Provider under this Agreement, or in law or equity or otherwise.

5. PUBLICATION ON LIBRARIES - PROPRIETARY RIGHTS

  • 5.1 In consideration of the rights and entitlements conferred on the Author under this Agreement, you hereby acknowledge and agree that the copyright and all other rights of any nature now subsisting or conferred in any zApps published on any of the Libraries, and not otherwise owned by any other third party, shall vest in the Provider as and from the date of first publication of the zApps.
  • 5.2 Accordingly, you assign to the Provider or any entity nominated by the Provider:
    • (a) the entire copyright throughout the world and all other rights of a like nature now subsisting or conferred in respect of any proprietary zApps Content held by you by the law in force in any part of the world including all renewals and extensions;
    • (b) by way of assignment of future copyright, the copyright and all other rights of a like nature from time to time belonging to you which may be conferred or may subsist in any alterations or additions to the Works and any and all renewals and extensions thereof; and
    • (c) any and all common law rights and statutory or common law remedies in relation to any proprietary zApps Content held by you and available to you at the date of first publication of the zApps on any of the Libraries.
  • 5.3 You consent in favour of the Provider or any entity nominated by the Provider to any activity the performance of which would otherwise infringe your moral rights.
  • 5.4 You further consent to the use of, and hereby authorise the Provider to use, your name, image, voice, likeness and any or all your attributes and/or your business name, logo, trademark or any other identifying marks for creating informational or promotional material or pages of any zApps published on any of the Libraries and for any other purposes as the Provider deems necessary or prudent in respect of the Site or the business of the Provider.
  • 5.5 The Provider grants you an exclusive, worldwide and royalty-free licence to reproduce, distribute,adapt, use and publicly display any zApps Content in its entirety and as a whole in any other digital or electronic format or in hard copies for the purposes of sale and/or any other commercial ventures you participate in or intend to participate in.

6. PUBLICATION ON LIBRARIES - WITHDRAWAL OF ZAPPS

  • 6.1 All zApps published on the Libraries may be viewed by other Users and, subject to the features and functionality of each of the Libraries and the entitlements of each User category set by the Provider, may be accessed, used or downloaded by other Users.
  • 6.2 You acknowledge and agree that the Provider shall not be responsible in any manner any loss or damage caused by or arising as a direct or indirect consequence of the publication of any zApps by you or the access, use or download of such sApps by any other User, whether in breach of the User Agreement or Privacy Policy or otherwise.
  • 6.3 The Provider shall have the absolute discretion to remove or withdraw from any of the Libraries any zApps if the Provider considers it necessary or prudent to do so to protect the rights of the Provider, other Users and/or any other third parties.
  • 6.4 You acknowledge and agree that the withdrawal will apply prospectively only and will not apply to any zApps that have been accessed, used or downloaded by any User prior to such withdrawal.

7. USE OF ZAPPS AND AUTHOR ROYALTIES

  • 7.1 All zApps published by you and distributed through or in connection with any of the Libraries may be offered for use under the sQuizya Author Royalty Program.
  • 7.2 You acknowledge and agree that:
    • (a) the Provider may convert the Subscription Sale Currency into any other currencies at the exchange rate of conversion applicable at the time of sale or at any other reasonable exchange rate determined by the Provider from time to time;
    • (b) the subscriptions may be sold at such other currencies as the Provider in our absolute discretion may determine;
    • (c) the Provider is solely responsible for processing all sales, payment collection, requests for refunds and/or related customer services of the zApps made through or in connection with the Libraries; and
    • (d) the Provider shall have sole and exclusive ownership and control of all data obtained from purchasers or prospective purchasers of the subscriptions and has no obligation to share or reveal any such data to you or to the zApps Account Holder.
  • 7.3 Authors who join the sQuizya Author Royalty Program will receive a royalty payment based on a share of actual earnings received by the Provider in respect of the sale of subscriptions to the Libraries for each year, net of refunds, bad debt, any applicable GST, VAT, sales or other taxes charged to a purchaser or applied with respect to sales to a purchaser ("Royalties").
  • 7.4 Royalties shall be paid in accordance with the following terms and conditions:
    • (a) Royalties are determined by:
      1. calculating the gross value of the sQuizya Author Royalty Program for the given twelve month period. This is a percentage of net sales as calculated in 7.3. Currently the percentage used is 50% but this is subject to change at the discretion of the Provider;
      2. calculating the proportion of legitimate use of the Author's zApps in comparison with the use of all zApps in the libraries in that twelve month period. Legitimate use is as defined by the Provider and is subject to change at the Providers discretion;
      3. considering any sharing agreement that exists between the Author and sQuizya;
      4. multiplying the gross value of the sQuizya Royalty Program as found in 7.4(a)1 by the proportion, expressed as a percentage of all use as found in 7.4(a)2 and by the proportion, expressed as a percentage of the Authors share, determined in 7.4(a)3.
    • (b) payment of Royalties shall be made by the Provider within six months of the expiry of the twelve month period to June 30, for the duration of the term of this Agreement provided always that if the amount of Royalties payable is less than $100 USD in the relevant currency then the Provider has the right at our absolute discretion to combine payment of such Royalties with the Royalties payable for the next year;
    • (c) the Provider shall make all payments in the Sale Currency by way of PayPal directly into the PayPal account nominated by the zApps Account Holder;
    • (d) all payments must be accompanied by an email to you sent to your nominated email address as notified by you to the Provider setting out the following details ("Email Statement"):
      1. the sales activity of the relevant twelve month period to which the payment applies;
      2. the amount of Royalties paid; and
      3. the evidence of payment in the form of a statement of payment details automatically generated by PayPal ("Evidence of Payment");
    • (e) the Author acknowledges and agrees that payment of Royalties shall be deemed to have been made on the production of the Evidence of Payment and that:
      1. the Provider shall not be liable, and disclaims any and all liability, for or arising in connection with your failure to receive payment for any reason whatsoever, including any failures caused by the negligence of PayPal and/or its representatives and agents and any other failures caused by factors outside of the Provider's control; and
      2. the Provider shall also not be liable, and disclaims any and all liability, for or arising in connection with your failure to receive payment as a result of payments being made to a PayPal account that is owned or controlled by the zApps Account Holder in the circumstances where you are not the zApps Account Holder. You are responsible for maintaining your relationship with the zApps Account Holder and any rights and entitlements you may have against the zApps Account Holder.
  • 7.5 All issues, concerns and/or disputes with respect the payment of Royalties in accordance with this clause shall be communicated in writing to the Provider at our nominated email address at accounts@squizya.com within 6 months of the date of the Email Statement. The Provider shall take all reasonable steps to resolve the issue, concern or dispute with you on a prompt basis.
  • 7.6 You shall not be entitled to institute legal proceedings against the Provider with respect to any payment of Royalties or the content of the Email Statement unless the Provider is unable to resolve the issue, concern or dispute with you within 3 months of the date of first communication of the aforesaid to the Provider pursuant to clause 7.6. All legal proceedings instituted against the Provider shall be limited to a determination of the amount of Royalties payable to you and your sole remedy shall be the recovery of such amount free of interest.
  • 7.7 The Provider has a right of set-off and shall be entitled to withhold or permanently forfeit any Royalties from you for the purposes of offsetting such Royalties against future payments and/or loss or damage suffered by the Provider in the following circumstances:
    • (a) where refunds or returns on sales included in the calculation of Royalties already paid to you occur;
    • (b) where a third party asserts that the sale of the zApps contravened the rights of the third party;
    • (c) where you are in breach of any obligations of this Agreement or incorporated guidelines, specifications or policies of the Provider, or where you are in breach of the User Agreement or Privacy Policy;
    • (d) where you are in violation of any applicable laws; and
    • (e) where this Agreement has expired or has been terminated, for any reason whatsoever.

8. SUSPENSION AND TERMINATION

  • 8.1 The term of this Agreement shall commence on Effective Date and shall continue for the duration of the term of the User Agreement.
  • 8.2 Clauses 5 and 7 and all disclaimers and limitations of liability as they apply to the rights granted by the Provider and the restrictions placed on you here in shall survive the termination or expiration of this Agreement for any reason.

9. EXCLUSIONS OF LIABILITY AND INDEMNITY

  • 9.1 To the fullest extent of the law, the Provider expressly disclaims all conditions, warranties, representations, liabilities and obligations of any kind, whether express or implied, including, but not limited to any conditions or warranties as to:
    • (a) merchantability, fitness for a particular purpose or correspondence to particular descriptions in respect of the Libraries;
    • (b) the results procured from the access and use of the zApps Creator, the publication of zApps and the distribution of the zApps through or in connection with the Libraries;
    • (c) the marketing and promotion efforts of the Provider, if any, relating to the Libraries, the Site and/or any zApps offered on such Libraries; and
    • (d) the fact that such results are accurate, complete or otherwise reliable.
  • 9.2 You expressly understand and agree that the Provider, its subsidiaries, affiliates, officers, agents, co-branders or other partners and employees shall not be liable to you for any indirect, incidental, special, consequential or exemplary damages, including but not limited to damages for:
    • (a) damage to property;
    • (b) loss of profits or revenue;
    • (c) loss of data;
    • (d) goodwill;
    • (e) other tangible and intangible losses, even if the Provider has been advised of the possibility of such damages, resulting from or relating to the publication and distribution of the zApps through or in connection with the Libraries.
  • 9.3 The Provider,its subsidiaries, affiliates, officers, agents, co-branders or other partners and employees shall also not be liable to you for any delay, interruption or other failure to perform under this Agreement due to acts beyond its reasonable control for so long as such conditions persist. Force majeure events include, but are not limited to, natural disasters (e.g., lightning, earthquakes, hurricanes, floods), wars, riots, terrorist activities, and civil commotions; activities of local exchange carriers, telephone carriers, wireless carriers, Internet service providers, and other third parties; explosions and fires, embargoes, strikes, and labour disputes, governmental decrees and any other cause beyond the reasonable control of the Provider.
  • 9.4 You agree to fully indemnify, defend and hold the Provider, and its subsidiaries, affiliates, officers, agents, co-branders or other partners and employees, harmless from any and all claims or demands, liabilities, damages, losses, costs and expenses, including reasonable attorneys' fees, made by any third party due to or arising out of your breach of any provisions of this Agreement.

10. REPRESENTATIONS AND WARRANTIES

  • 10.1 You represent and warrant that:
    • (a) you have the legal right and authority to enter into this Agreement;
    • (b) you have the legal right and authority to perform your obligations under this Agreement; and
    • (c) by entering into this Agreement, you are not violating or creating a default under any law, rule, regulation, judgment, order, instrument, agreement or charter document binding on you.

11. TAXES

  • 11.1 You hereby agree and warrant that, save for any taxes taken into account in the calculation of Royalties as described in clause 7.4, you shall be solely responsible for the payment of all taxes and other costs, expenses, liabilities and claims arising from, or in connection with payments under the sQuizya Author Royalty Program.

12. NOTICES

  • 12.1 A party notifying or giving notice under this Agreement must give notice:
    • (a) in writing;
    • (b) with respect to the Provider, to the contact details specified on squizya.com as may be updated from time to time;
    • (c) with respect to you, to the postal address, fax number or email address specified in Your Account, as may be updated by you from time to time.
  • 12.2 A notice given in accordance with this clause is received:
    • (a) if left at the recipient's address, on the date of delivery;
    • (b) if sent by prepaid post, four (4) days after the date of posting;
    • (c) if sent by fax, when the sender's facsimile system generates a message confirming successful transmission of the total number of pages of the notice; and
    • (d) if sent by email, when the sender does not receive any failed delivery email notification from either its, or the recipient's, mail server within two (2) days after the date of the email.

13. NO ASSIGNMENT

  • 13.1 You must not assign any of your rights or obligations under this Agreement to any third parties.
  • 13.2 The Provider may, without any notice to you, assign any of its rights or obligations herein to any third party.

14. GOVERNING LAW

  • 14.1 This Agreement and any obligations arising out of or in relation to Agreement shall be governed by and construed in accordance with the laws of the state of Victoria and the Commonwealth of Australia.

15. JURISDICTION

  • 15.1 You understand, agree and acknowledge that the courts of the state of Victoria are to have exclusive jurisdiction to settle any dispute (including claims for set-off and counter claims and disputes relating to any non-contractual obligations) which may arise out of or in connection with this Agreement and for such purposes irrevocably submit to the jurisdiction of the aforesaid courts.

16. ENTIRE AGREEMENT

  • 16.1 This Agreement and all guidelines, specifications and policies of the Provider, the User Agreement, the Privacy Policy and any other incorporated agreements, specifications, guidelines and policies of the Provider referred to or incorporated into any of the aforesaid,constitute the entire agreement between you and the Provider, superseding any prior oral or written proposal, agreements or other communication between you and the Provider with respect to the publication, distribution and/or sale of zApps by you through or in connection with the Libraries.
  • 16.2 This Agreement may be modified from time to time by the Provider by way of written notification to you in accordance with clause 12.

17. WAIVER AND SEVERABILITY OF TERMS

  • 17.1 The failure of the Provider to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision.
  • 17.2 If any provision of this Agreement is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavour to give effect to the parties' intentions as reflected in the provision, and the other provisions of this Agreement remain in full force and effect.