COVID 19 CHILLED AND CONSIDERATE TERMS AND CONDITIONS
Welcome to COVID-19 Chilled and Considerate, a school-based program designed to support the emotional wellbeing of students during this public health crisis. The following terms apply to your school’s use and provision of access to the platform and our services to staff and students.
1. Acceptance
A. This Agreement is between Aubrey Maturin Pty Ltd as trustee for The Distinct Psychology Unit Trust ABN 86158126429 (Distinct Psychology), (referred to as we, us or our), and you, the organisation or entity subscribing to our Services (referred to as you or your), and collectively the Parties.
B. You have requested our Services. You agree and accept that this Agreement forms the agreement under which we will supply the Services to you.
C. The Services may be provided to you by email or other electronic means and / or made available on the Site.
D. The Services may be used by you to deliver the courses to your enrolled students. The Services may not be used by you for any other purpose. The teacher manuals may not be distributed to other schools or parents. They are for the sole use of teachers employed by you.
E. You accept this Agreement by:
1. clicking the “I accept” button or similar on the Site; or
2. making part or full payment for the Services.
F. By accessing and/or using the Services, you:
1. warrant to us that you have reviewed this Agreement, and you accept its terms;
2. warrant to us that you have the legal capacity to enter into a legally binding agreement;
3. warrant to us that you are a school and will use the program for educational purposes;
4. warrant to us that you have the authority to act on behalf of any person or entity for whom you are using the Services, and you are deemed to have agreed to this Agreement on behalf of any entity for whom you use the Services; and
5. agree to use the Services in accordance with this Agreement.
2. Term and Subscriptions
A. This Agreement commences on the date you accept the Agreement in accordance with clause 1(c) and will continue until terminated in accordance with its terms (the Term).
B. Subscriptions to our Services are 12 monthly subscriptions. Your 12 monthly subscription will continue unless you let us know you would like to terminate or discontinue your subscription, in accordance with clause 12(b). You will receive 3 emails reminding you of the subscription prior to such a renewal.
C. Fees for access to the Services are paid every three months, in accordance with clause 9.
3. Intellectual Property
A. A Party’s ownership of, or any right, title or interest in, any Intellectual Property rights in an item which exists on or prior to the date on which this Agreement is formed in accordance with clause 1(c) (Pre-Existing Material) will not be altered, transferred or assigned by virtue of this Agreement.
B. We own all Intellectual Property rights in and to the Services and any other Intellectual Property rights made available to you, or made available to you on our behalf (together Our IP). Modifications and enhancements to any of our Pre-Existing Material are also to be treated as Our IP.
C. In consideration for payment of the Fee, we grant you a non-exclusive, non-transferable (except with our written permission), non-sublicensable (except as otherwise permitted under this Agreement), personal and revocable licence to access and use the Services for the purpose of providing end users with access to information and content available through the Services, and to the Services themselves, for the Term (Licence).
D. The Licence granted under this clause expires immediately on termination of this Agreement.
E. You must not, without our prior written consent:
1. reproduce, retransmit, distribute, disseminate, sell, publish, broadcast or circulate any of Our IP to any third party (except as clearly labelled and permitted by this Agreement);
2. breach any Intellectual Property rights connected with the Services, including altering or modifying any of our Intellectual Property;
3. cause any of our Intellectual Property to be framed or embedded in another website; or creating derivative works from any of our Intellectual Property; or
4. alter, remove or tamper with any trademarks, any patent or copyright notices, any confidentiality legend or notice, any numbers or any other means of identification used on or in relation to the Services.
F. This clause will survive termination or expiry of this Agreement.
4. Restrictions
A. You must not (and must ensure end users do not) access or use the Services except as permitted by the Licence and you must not and must not permit any other person to:
1. use the Services in any way which is in breach of any applicable Laws or which infringes any person's rights, including Intellectual Property rights;
2. use the Services in any way that damages, interferes with or interrupts access to the Services;
3. reveal your Account’s password to others or allow others to use your Account;
5. Third Parties
A. You acknowledge and agree that:
1. the provision of the Services may be contingent on, or impacted by, third parties, end users, suppliers, other subcontractors (Third Party Inputs); and
2. despite anything to the contrary, to the maximum extent permitted by law, we will not be responsible, and will have no Liability, for any default or breach of this Agreement or law, if such default or breach was caused or contributed to by any Third Party Inputs.
B. This clause will survive the termination or expiry of this Agreement.
6. Warranties
A. You warrant and agree that:
1. there are no legal restrictions preventing you from agreeing to this Agreement;
2. you will inform us if you have reasonable concerns relating to our provision of Services under this Agreement, with the aim that the Parties will use all reasonable efforts to resolve your concerns;
3. you are responsible for obtaining any consents, licences, authorities and permissions from other parties necessary for the Services to be provided in accordance with this Agreement, at your cost, and for providing us with the necessary consents, licences, authorities and permissions;
4. you will maintain the confidentiality and security of any of your Account details or passwords.
7. Payment
A. You must pay us the Fee for your Package and any other amount payable to us under this Agreement, without set off or delay, via credit card or any other payment method set out on the Site.
B. The Fee for your Package is payable quarterly. When you first subscribe to our Services, the Fee is payable up front for you to access the Services for the quarter. Subsequently, the Fee is payable by the date that is the anniversary of the date on which you first subscribed, if you wish to continue accessing the Services.
C. Any payments of Fees are non-refundable, except where you terminate in accordance with clause 13(m). No refunds or credits will be provided.
D. All Fees exclude VAT and must be paid without any deduction or withholding. You are responsible for all taxes, levies or duties imposed by the relevant taxing authorities, and you shall be responsible for payment of them.
E. The Fee is subject to change upon 30 days’ notice from us to you and will apply to the next Package billing cycle. Such notice may be provided at any time by posting the changes on our Site, via email or via a notification to your Account. If you do not agree to the Fee change, you may cancel your Account prior to the next billing cycle in accordance with clause 12(a).
8. Confidential Information
A. You acknowledge that the information and content in the Services comprises Confidential Information.
B. Each Party (Recipient) must keep confidential, and not disclose, any Confidential Information of the other party (Discloser) except:
1. where permitted by this Agreement;
2. with the prior written consent of the Discloser;
3. where the Confidential Information is received from a third party, except where there has been a breach of confidence
4. on a confidential, “needs to know” basis to the Recipient’s Personnel, auditors, insurers, agents and professional advisors; or
5. where the Recipient is compelled to do so by Law, provided that it gives the other party written notice prior to disclosure.
C. The Recipient must only use the Confidential Information of the Discloser for the purpose for which it was disclosed and in connection with this Agreement.
D. This clause will survive termination or expiry of this Agreement.
9. Liability
A. Despite anything to the contrary, to the maximum extent permitted by law:
1. our maximum aggregate Liability arising from or in connection with this Agreement (including the Services or the subject matter of this Agreement) will be limited to, and must not exceed the total amount of Fees you paid to us in the 12 month period directly preceding the date on which such Liability arose; and
2. we will not be liable to you for any Consequential Loss, whether under statute, contract, equity, tort (including negligence), indemnity or otherwise.
B. Despite anything to the contrary, to the maximum extent permitted by law, we will have no Liability, and you waive and release us from and against, all Liability (whether under statute, contract, negligence or other tort, indemnity, or otherwise) arising from or in connection with any:
1. loss of, or damage to, any property or any injury to or loss to any person;
2. failure or delay in providing the Services; or
3. breach of this Agreement or any Laws, where caused or contributed to by any:
1.1 event or circumstance beyond our reasonable control; or
2.1 act or omission of you, your related parties, Personnel or any third party (including end users), and, in any event, any error, omission or lack of suitability (or the absence of, or reduction in, any
anticipated result, outcome or benefit) with respect to the Services.
C. To the maximum extent permitted by law, you indemnify and continue to indemnify us against all Liability we suffer or incur arising from or as a consequence of a breach of clause 5 (Intellectual Property).
D. You acknowledge and agree that:
1. you are responsible for all users using the Services, including your Personnel and any end users;
2. we may use third party service providers to host the Services. If the providers of third party applications or services cease to make their services or programs available on reasonable terms, we may cease providing any affected features without Liability or entitling you to any refund, credit, or other
compensation;
3. the Services may use third party products, facilities or services. We do not make any warranty or representation in respect of the third party products, facilities or services; and
4. we do not guarantee that any file or program available for download and/or execution from or via the Services is free from viruses or other conditions which could damage or interfere with hardware or software with which it might be used.
E. This clause will survive termination or expiry of this Agreement.
10. Termination
A. You may terminate your Account by emailing us. No refunds will be given upon termination in accordance with this clause 12(a).
B. If you do not wish to continue your access to the Services in subsequent contract terms, you may either (i) notify us in writing or (ii) if you do not make payment of subsequent invoices, we will terminate your Account and your access to the Services.
C. The Parties may terminate this Agreement by mutual signed agreement.
D. To the extent permitted by law, either Party may terminate this Agreement if the other Party:
1. has breached a material term of this Agreement and has failed to remedy such breach within 20 Business Days of receiving notice to do so, subject to any other express right of termination;
2. ceases operation without a successor; or
3. is subject to an Insolvency Event.
E. We may, at any time and at our sole discretion, suspend or terminate your Account for any reason. We will generally alert you when we take such action and give you a reasonable opportunity to remedy any breach of this Agreement, but if we determine that your actions endanger the operation of the Services or other users, we may suspend or terminate your Account immediately without notice. You will continue to be charged for the Services during any suspension period in which you are in breach of this Agreement. If we suspend your Account and you are not in breach of this Agreement, we will apply a credit to your Account for the Fees you have paid for any unused portion of your Package to which the period of suspension relates. If we terminate your Account and you are not in breach of this Agreement, we will refund you the Fees you have paid for any unused portion of your Package. If we terminate your Account and you are in breach of this Agreement, no refunds will be given.
F. On termination of this Agreement:
1. you must cease using the Services and the Services will no longer be available to you or end users;
2. you agree that any payments made are not refundable to you;
3. you must pay for all Services provided under the Agreement including Services which have been performed and have not yet been invoiced to you, and all other amounts due and payable under this Agreement;
4. you agree to promptly return (where possible) or delete or destroy (where not possible to return), our Confidential Information and Intellectual Property, and/or documents containing or relating to our Confidential Information and Intellectual Property;
5. we agree to promptly return (where possible) or delete or destroy (where not possible to return), your Confidential Information and Intellectual Property, and/or documents containing or relating to your Confidential Information and Intellectual Property unless we are required by Law or regulatory
requirements to retain such information. For the avoidance of doubt, we will remove your marks and logos from your access portal.
G. The accrued rights, obligations and remedies of the Parties are not affected by the termination of this Agreement.
H. This clause will survive termination or expiry of this Agreement.
11. General
A. Our Services will be provided to you on a non-exclusive basis.
B. We reserve the right at any time and from time to time to change or remove features of the Services provided that, where there is any material alteration to the Services in accordance with this clause, we will provide you with 20 Business Days’ notice.
C. Subcontracting: We may engage subcontractors to perform the Services on our behalf.
D. Publicity: With your prior written consent, we may use advertising, or publicly announce, that we have undertaken work for you, including in website testimonials and in our marketing material.
E. Force Majeure: We will not be liable for any delay or failure to perform our obligations under this Agreement if such delay is due to any Force Majeure Event. We will provide you with prompt notice of the occurrence of any Force Majeure Event. If we are delayed from performing our obligations due to such a circumstance for a period of at least two months, we may terminate our agreement with you by giving you five Business Days' notice in writing.
F. Disputes: Neither Party may commence court proceedings relating to any dispute arising from, or in connection with, this Agreement without first meeting with a senior representative of the other Party to seek (in good faith) to resolve that dispute (unless that Party is seeking urgent interlocutory relief or the dispute relates to compliance with this provision).
G. Notices: Any notice required or permitted to be given to us must be in writing and addressed to us at the details set out below or to you at the details you provided for your Account.
H. Waiver: Any failure or delay by a Party in exercising a power or right (either wholly or partly) in relation to this Agreement does not operate as a waiver or prevent a Party from exercising that power or right or any other power or right. A waiver must be in writing.
I. Relationship of Parties: This Agreement is not intended to create a partnership, joint venture or agency relationship between the Parties. Nothing in this Agreement gives a Party authority to bind the other Party in any way.
J. Severance: If a provision of this Agreement is held to be void, invalid, illegal or unenforceable, that provision is to be read down as narrowly as necessary to allow it to be valid or enforceable, failing which, that provision (or that part of that provision) will be severed from this Agreement without affecting the validity or enforceability of the remainder of that provision or the other provisions.
K. Amendment: We may, at our discretion, vary this Agreement and will use reasonable endeavours to notify you of these changes by, for example, publishing varied terms on the Site or by sending an email to the billing or technical contact you designate in your Account. If you object to any revisions, you may cancel or choose not to renew your subscription. Your continued use of the Services following any changes indicates your acceptance of the changes.
L. Governing law: The Agreement is governed by the laws of New South Wales. You irrevocably and unconditionally submit to the exclusive jurisdiction of the courts operating in New South Wales and any courts entitled to hear appeals from those courts and waive any rights to object to any proceedings being brought in those courts.
M. This clause will survive termination or expiry of this Agreement.
12. Definitions and Interpretation
A. Definitions
In this Agreement, the following words mean:
Account has the meaning given in clause 3(a);
Agreement means this Agreement;
Business Day means a day which is not a Saturday, Sunday or bank or public holiday in New South Wales.
Claim includes a claim, notice, demand, right, entitlement, action, proceeding, litigation, prosecution, arbitration, investigation, judgment, award, damage, loss, cost, expense or liability however arising, whether present, unascertained, immediate, future or contingent, whether based in contract, tort (including negligence), in equity or statute or otherwise, for indirect, special or Consequential Loss;
Confidential Information includes confidential information about a Party’s business, structure, programs, processes, methods, operating procedures, activities, products and services, trade secrets, know how, financial, accounting, marketing and technical information, customer and supplier lists (including prospective customer and supplier information), ideas, concepts, know-how, Intellectual Property, technology, and other information whether or not such information is reduced to a tangible form or marked in writing as "confidential" but does not include any information which is in the public domain other than through a breach of confidence;
Consequential Loss includes any indirect, incidental or consequential loss, loss of profits, revenue, production, opportunity, access to markets, goodwill, reputation, use or any remote, abnormal or unforeseeable loss, loss of use and/or loss or corruption of data or any loss or damage relating to business interruption, or otherwise, suffered or incurred by a person, arising out of or in connection with this Agreement (whether involving a third party or a Party to this Agreement or otherwise);
Fees means the subscription fees for your Package, as set out on the Site;
Force Majeure Event means an event which is beyond a Party's reasonable control including a fire, storm, flood, earthquake, explosion, accident, terrorist act, war, rebellion, insurrection, epidemic, quarantine restriction, transportation embargo, and strike by employees of a third person other than a subcontractor of a Party, but in each case, only if and to the extent that the non-performing Party is without fault in causing the event, and the event, or its effect could not have been prevented by reasonable precautions;
Intellectual Property includes any and all intellectual and industrial property rights throughout the world, whether subsisting now or in the future and includes all copyright and analogous rights, all rights in relation to inventions (including patent rights), registered and unregistered trademarks, designs (whether or not registered or registrable), circuit layouts, trade names, trade secrets, business names, customer names or internet domain names;
Laws means acts, ordinances, regulations, rules, code and by-laws of the United Kingdom of Great Britain and Northern Island or the Commonwealth of Australia or any state or territory;
Liability means any loss, liability, cost, payment, damages, debt or expense (including reasonable legal fees);
Licence has the meaning given in clause 5(d);
Package means your standard, premium or multi-campus subscription package;
Personnel means, in relation to a Party, the officers, employees, contractors and agents of that Party;
Services means our program of lessons described as “COVID 19 Chilled and Considerate” to assist in managing the emotional reactions associated with the spread of the virus known as Novel Coronavirus or COVID-19; the Bootcamp program consists of a pdf manual, a pdf student journal and the powerpoint slides containing lesson guides, video clips, audioclips and reflection questions. The training sessions are provided via a zoom call which may be recorded for distribution within the whole school, two live participants per school are covered by the training fee. Zoom sessions will be set up at prearranged times and staff may book into these scheduled sessions with both Dr Einstein and Dr
Wright present. Private individual school only zoom sessions may be set up at Dr Wright or Dr Einstein’s discretion and will attract a separate fee.
Site means our website, available at: www.covid19chilledandconsiderate.com.au
Third Party Inputs has the meaning given in clause 7(a)(1);
Term has the meaning given in clause 2(a); and
Terms has the meaning given in clause 1(b).
B. Interpretation
In this Agreement, unless the context otherwise requires:
1. the singular includes the plural and vice versa;
2. headings are for convenience only and do not affect interpretation;
3. a reference to this Agreement or any other document includes the document, all schedules and all annexures as novated, amended, supplemented, varied or replaced from time to time;
4. if any act which must be done under this Agreement is to be done on a day that is not a Business Day then the act must be done on or by the next Business Day;
5. the word "month" means calendar month and the word "year" means 12 months;
6. the words "in writing" include any communication sent by letter or email or any other form of communication capable of being read by the recipient;
7. a reference to any legislation or law includes subordinate legislation or law and all amendments, consolidations, replacements or re-enactments from time to time;
8. includes and similar words mean includes without limitation;
9. a reference to $ or dollars refers to the currency of Australia from time to time;
10. a reference to any agency or body, if that agency or body ceases to exist or is reconstituted, renamed or replaced or has its powers or functions removed (defunct body), means the agency or body that performs most closely the functions of the defunct body; and
11. no clause will be interpreted to the disadvantage of a Party merely because that Party drafted the clause or would otherwise benefit from it.
For any questions, please contact us at:
Distinct Psychology
ABN 86158126429
Email: enquiries@danielleeinstein.com
Last update: 18 March 2020