Effective: 25 March 2020
Welcome to Enquiry Tracker. Please read on to learn the rules and restrictions that govern your use of the Enquiry Tracker Service, as well as your rights and responsibilities as a customer accessing our Service and Assistance.
PLEASE NOTE THAT IF YOU REGISTER FOR THE SERVICE OR PLACE AN ORDER USING AN EMAIL ADDRESS FROM AN ORGANISATION, WHETHER THAT BE YOUR EMPLOYER OR ANOTHER ENTITY, THEN (A) YOU WILL BE DEEMED TO REPRESENT SUCH ORGANISATION, (B) YOUR CLICK TO ACCEPT OR ORDER WILL BIND THAT ORGANISATION TO THESE TERMS, AND (C) THE WORD “YOU” IN THESE TERMS WILL REFER TO THAT ORGANISATION.
1. Documents forming part of these Terms
1.1 Policies and Proposal Document part of Terms. These Terms include the provisions in this document, together with our Policies (which are incorporated by reference into these Terms) and any applicable Proposal Document(s).
1.2 Inconsistency. To the extent of any inconsistency between these Terms and either our Policies or a Proposal Document, these Terms will prevail.
2. Effective Date and acceptance of Terms
2.1 Effective Date. These Terms are effective on the date (i) you first check “Yes” or “I agree” (or similar checkbox) and click the “Place Order” (or similar button) on our Sign Up page; or (ii) you (or your User) use or access the Service, whichever is earlier (the “Effective Date”). These Terms will remain in effect during the Subscription Term, unless varied in accordance with section 11 (How we can change these Terms) or 17.8 (Amendments) or terminated in accordance with these Terms.
2.2 Acceptance. These Terms do not have to be signed in order to be binding. You indicate your acceptance of these Terms by clicking “Yes” or “I agree” (or similar button or checkbox) at the time you Place an Order for the Service or otherwise create an account in the Service, whichever occurs earlier.
2.3 Placing an Order. You may place an order for the Service by accepting the Proposal Document provided by us or our Reseller via completing the form on our Sign Up page (a link to which will be provided on the Proposal), or via any other electronic means made available to you by us or our Reseller (where applicable to you) from time to time (“Place an Order”).
3. Subscription Term and renewal
3.1 Initial Subscription Term. The Service is offered on an annual subscription basis. Your initial subscription commences on the Effective Date and continues for a period of 12 months (unless an alternative period is specified on the Proposal Document) following the first calendar day of the month immediately after the Effective Date (“Initial Subscription Term”), unless terminated earlier in accordance with these Terms.
3.2 Automatic Renewal. Your subscription will automatically renew for another 12 months (“Renewal Term”) at the end of the Initial Subscription Term or then current Renewal Term (as applicable) unless either party gives notice of non-renewal at least 21 days before the expiry of the Initial Subscription Term or then current Renewal Term (as applicable). All renewals are subject to us continuing to offer the Service and the fees for each Renewal Term will be calculated at the then-current List Price based on the applicable Tier for your Organisation at that time and any Optional Modules you have subscribed for. Where a party has given notice of non-renewal in accordance with this section, your subscription will expire at the end of the then current Initial Subscription Term or Renewal Term (as applicable).
3.3 Changes to List Price. We will notify you in writing, including any change to the List Price, of an upcoming renewal no less than 30 days before the expiry of the applicable Subscription Term.
4. Our Services and Assistance
4.1 Provision of Service. Subject to your payment of the Fees and the remainder of these Terms, we will make the Service (including any Optional Modules for which you have subscribed, as specified on the Proposal Document) available for you to access and use for the appropriate Tier specified on the Proposal Document during the Subscription Term for your internal business purposes. Your right to access and use the Service is non-exclusive, non-transferable and non-sublicensable.
4.2 Service Level. Our target is a minimum of 99.0% Uptime for the Service during any calendar month, and we will use our reasonable efforts to achieve this, however we cannot guarantee it. If the Service becomes unavailable we will work as quickly as reasonable possible to restore Availability, however depending on the issue this may take some time. We will let you know as soon as practicable if Availability will not be restored for longer than 2 days. “Uptime” means the number of hours in a calendar month when the Service is Available. “Available” means the Service is available to be accessed via our website, excluding any unavailability caused by (i) you; (ii) third parties; (iii) system maintenance; or (iv) a Force Majeure Event.
4.3 Acknowledgement. You acknowledge that the Service:
a. is dependent on third-party services, including but not limited to email providers, cloud hosting services, and telecommunications services;
b. is hosted, managed and supported by us using servers running on a third party cloud hosting platform, and that no ‘back-end’ access to the Service is available to you unless expressly agreed in writing, or accessed by through use of an API provided by us;
c. can only be accessed using the internet or other connection to our Website, and is not available ‘locally’ from a User’s system;
d. may provide links to third party websites or other Third Party Content where we do not control or have any responsibility for that Third Party Content; and
e. allows you to provide links to third party websites that we do not control or have any responsibility over.
4.4 Changes to the Service. You acknowledge that as a hosted software-as-a-service solution, we may make improvements or other changes to the Service from time to time and update the associated documentation. While we would not typically make changes that would intentionally cause you to lose access to material Organisation Data or fundamentally decrease the utility of the Service to you (“Detrimental Change”), if we do so during your Subscription Term then you may terminate your subscription by notice to us and receive a pro-rata refund of the Subscription Fee for the remaining unused portion of the prepaid Subscription Term. To exercise this right, you must give us notice of your termination from your Primary Administrator within 30 days of us making the Detrimental Change.
4.5 New Features. We may introduce new features or functionality within the Service with corresponding additional fees (“New Features”) by giving you written notice of their availability and applicability. Any such New Feature will be an Optional Module, and your right to access and use it will be subject to payment of the corresponding additional fee based on our then current List Price. You acknowledge that we provide no commitment to introduce New Features and you agree that your order for the Service, and obligation to pay the Fees, is not contingent on any future features or functionality or any oral or written comments in public promotional material in relation to future features or functionality.
4.6 Restricting access. We may limit or restrict access to the Service from time to time as we consider necessary, including (but not limited to):
a. Users: we may restrict access if Users do not comply with these Terms or our Policies;
b. Organisations: we may restrict access only to reputable and/or registered Organisations, or if an Organisation does not comply with these Terms or our Policies;
c. Location: we may restrict access to certain jurisdictions where we are able to offer the Service.
4.7 Discontinuation of Service. We can discontinue the Service or any portion or feature of it for any reason at any time. Where we do this at the end of your Initial Subscription Term or Renewal Term (as applicable), this will be without any liability to you and your renewal for the subsequent Renewal Term (where we have not discontinued the Service in full) will be for the Service without the discontinued portion or feature. Where we discontinue the Service in full during your Subscription Term, section 14.3 (Termination for convenience by us and discontinuing the Service) will apply. Where we discontinue a portion or feature of the Service during your Subscription Term and this fundamentally decreases the utility of the Service to you, this will be a Detrimental Change and section 4.4 (Changes to the Service) will apply.
4.8 Support. We will provide you with technical support during Business Hours for any Product Bugs you encounter in using the Service or where you require assistance in how to perform a task using the Service. To request our technical support, please email or call us. We will endeavour to respond to your request as soon as reasonably practicable. We may provide our technical support to you via email, phone, screen share or in person on site at our discretion. You may also provide us Feedback, such as feature requests or suggestions for enhancements or improvements to the Service, in the same manner as you request support, however we may not respond to you or act upon all such requests or suggestions.
4.9 Training. We (or our Reseller, where applicable) will provide you with the following training to support the professional development and use of the Service as part of your Subscription Fees:
a. unlimited access for your Users to available training materials such as pre-recorded videos and existing documentation; and
b. up to 12 hours (in aggregate, across all of your Users) of personal training per year of your Subscription Term, with the understanding that this training occurs in our normal business hours, and may be provided through virtual assistance, screen share, video link or similar, and may be off-site or via group user sessions. Requests for this training are subject to availability, and any unused hours at the end of a year do not roll over to the next year.
4.10 Optional Assistance. We may offer optional assistance services from time to time, such as assistance to import data into the Service for you (Optional Data Upload), assistance in exporting data from the Service to your Student Management System or other system (Optional Data Export) or other professional services described on a Proposal Document (Optional Assistance). Where Optional Assistance is selected on your Proposal Document, subject to you paying the associated Fees, we will provide the Optional Assistance as described on your Proposal Document with professional care and skill. Where you provide data to us for upload into the System, or we are assisting you in exporting data from the Service, you acknowledge that we will not review your data for accuracy, and we cannot guarantee that the data will be imported or exported free from errors or omissions. You must ensure you keep your own back up of any data that you provide to us.
4.11 Third Party Content. Certain functionality of the Service is reliant on Third Party Content, as described at https://enquirytracker.net/thirdparty. Your use of the functionality of the Service that relies on this Third Party Content is subject to the terms of these third party providers and you should therefore read and ensure you agree to these terms before making use of this functionality. We may notify you of other Third Party Content or changes to Third Party Content used in our Service, and the associated terms, from time to time by publishing this information on our Website or by providing written notice to you in accordance with section 17.3 (Notices). We may also offer you the ability to integrate or access and use other Third Party Content with the Service (e.g. Google Tag Manager and Google Analytics), subject to your agreement with any applicable terms and conditions for that Third Party Content available at the time that you elect to integrate, access and use them. We will allow the third party providers of Third Party Content to access or use your Organisation Data as required for the interoperation of their products and services with the Service. This may include transmitting, transferring, modifying or deleting Organisation Data, or storing Organisation Data on systems belonging to the third party providers or other third parties. Any third party provider’s use of the Organisation Data is subject to the third party provider’s terms.
5. Responsibilities and restrictions
5.1 System Requirements. You must ensure that your devices meet the minimum system requirements for access to the Service, which are described on our website at https://www.enquirytracker.net/system-requirements and updated from time to time.
5.2 Your responsibilities. You must:
a. comply, and cause Users to comply with these Terms;
b. only use the Service in accordance with these Terms, for its intended purpose as part of your internal business operations, and in accordance with all applicable laws;
c. not use the Service to engage in any conduct that is unlawful, immoral, threatening, abusive or in any way that is deemed unreasonable by us in our reasonable discretion;
d. cooperate with us so that we can provide the Service, including using reasonable efforts to make people and information available;
e. be solely responsible for the Organisation Data, except for our obligations described in section 8 (Confidentiality) and 9 (Privacy and Security); and
f. use reasonable efforts to prevent unauthorised access or use of the Service and promptly notify us if you discover any unauthorised access or use.
5.3 Users and Enquiry Tracker Accounts. Only Users may use the Service and only with the Enquiry Tracker Account credentials (username and password) issued to that User. You must ensure that all Users keep the credentials (username and password) for their Enquiry Tracker Account confidential. Users may not share their Enquiry Tracker Account credentials with other Users or any other person. You are responsible for granting and removing permissions and credentials to any Users, and for the activities of all your Users and any other person using an Enquiry Tracker Account or credentials of a User. You must notify us immediately on becoming aware of unauthorised disclosure or use of Enquiry Tracker Account credentials. Users may choose to use a pseudonym.
5.4 Primary Administrator. You must specify a User as the primary person to administer your account (“Primary Administrator”), and provide the contact details, including email address, for that person. The Primary Administrator will have important rights over your use of the Service, including accepting any changes to the Terms on your behalf, confirming any request to use New Features or to add another campus to your subscription, and confirming any request to cancel your Service. You are responsible for who you specify as the Primary Administrator and any actions they take on your behalf, including as described above. You must promptly notify us of any change to the identity of the Primary Administrator during the Subscription Term. Users may choose to use a pseudonym.
5.5 Prohibitions. You must not, and must not permit any User or third party to:
a. use the Service except as expressly authorised under these Terms;
b. interfere with or disrupt the integrity or performance of the Service;
c. rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make the Service available to any person (other than your Users);
d. use the Service for the benefit of any third party, or incorporate the Service into a product or service that you provide to a third party;
e. disclose the Service to any provider of a similar product or service;
f. remove any title, trademark, copyright, or restricted rights notices or labels from the Service;
g. modify or create a derivative work of the Service or any portion of the Service;
h. reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to derive or gain access to the source code, object code or underlying structure or algorithms of the Service, except to the limited extent expressly permitted by law;
i. use the Service to build competitive products or services; or
j. procure or encourage any third party to do any of the foregoing.
6. Intellectual Property
6.1 Our Materials. We own all rights, title and interest, including Intellectual Property Rights, in and to the Service (including New Features), the “look and feel” of the Service, any and all related or underlying technology and any modifications to or derivative works of the Service, together with all materials we make available to you on our website or as part of providing Assistance (“Our Materials”). Except as expressly set out in these Terms, no rights are granted or transferred to you in relation to Our Materials.
6.2 Your licence. Subject to payment of the Fees and your compliance with these Terms (including the prohibitions in section 5.5 (Prohibitions) above), we grant you a limited, non-exclusive, non-transferable, non-sublicensable, revocable right during the Subscription Term to use such of Our Materials as strictly necessary for you to access and use the Service and our Assistance.
6.3 Feedback. If you or any User provides Feedback, you grant us a worldwide, perpetual, irrevocable, sub-licensable, royalty-free, transferable license to use the Feedback to further develop the Service or create new services. We will exclusively own all Intellectual Property Rights in any technology, developments, derivative works or other materials created by us or on our behalf using or incorporating Feedback, without any obligation to you.
6.4 Customer reference. We may include your name, logo and success stories such as testimonials on our Website, press releases, promotional and sales material, and lists of customers. You grant us a non-exclusive, worldwide, royalty free licence to use any of your logos in any form, media or technology for these purposes. We will promptly stop identifying you and using your logos on receiving notice from you to do so.
7.1 Ownership of Organisation Data and licence. You own all rights, title and interest in and to the Organisation Data. During the Subscription Term, you grant us a worldwide, non-exclusive, royalty-free, non-sublicensable (except as needed to provide the Service and Assistance, including to third parties we use for support of the Service and application development), non-transferable (except as described in section 17.5 (Assignment)) right to access, use, process, copy, distribute, export and display the Organisation Data to provide the Service and Assistance to you and to monitor and improve the Service, and to permanently delete the Organisation Data from the Service in accordance with these Terms.
7.2 Your obligations and acknowledgements. You:
a. are solely responsible for the Organisation Data you collect, store and access using the Service, including the accuracy, quality and legality of Organisation Data (whether provided by you, a User or an Enquirer);
b. are solely responsible for the use of your Organisation Data, and who you share the Organisation Data with;
c. are solely responsible for communications (e.g. emails or SMS) sent via the Service on your behalf;
d. are responsible for making and maintaining a backup of Organisation Data during the Subscription Term in accordance with section 7.8 (Data backup by you);
e. acknowledge that all communications sent to Enquirers or other individuals using the Service is on your behalf, and will use the Organisation’s name and logo (if supplied);
f. acknowledge that as an online service, you will not have access to Organisation Data via the Service when you are offline or when the Service is unavailable; and
g. acknowledge that you will not have access to the Organisation Data via the Service after the Subscription Term except as provided for in section 15.4 (Access and deletion of Organisation Data).
7.3 Your representations for data. You represent and warrant that:
a. you have obtained all necessary rights and permissions to collect all Organisation Data (whether via the Service or otherwise), submit all Organisation Data to the Service or to us for the purposes of Assistance, and to grant the rights granted to us in these Terms; and
b. your Organisation Data will not breach or infringe any laws, any third party rights (including Intellectual Property Rights and privacy) or your policies governing the Organisation Data.
7.4 Disclaimer. Other than our express obligations in section 8 (Confidentiality) and 9 (Privacy and Security), we accept no responsibility or liability for the Organisation Data and we do not guarantee the validity of any electronic transaction via the Service (e.g. WebForm completions).
7.5 Removals and Suspension. We have no obligation to monitor any Organisation Data uploaded to the Service. However, if we consider it necessary as a result of your breach of these Terms, including the Policies, or in response to a takedown request alleging copyright or trademark infringement, we may (i) delete Organisation Data from the Service or (ii) suspend your access to the Service. We will use reasonable efforts to provide you with advance notice of deletion or suspensions when practicable to do so, but reserve the right to delete Organisation Data or suspend access immediately without notice if we consider it necessary. We have no liability to you for deleting Organisation Data or suspending your access to the Service as described in this section 7.5.
7.6 Blind Data. We may collect, develop, create, extract, compile, synthesize, analyse and commercialise statistics, benchmarks, measures and other information based on Aggregated Data and your use of the Service (collectively, “Blind Data”). We will exclusively own Blind Data and we may use it for any lawful business purpose without a duty of accounting to you. “Aggregated Data” means Organisation Data that is: (i) anonymised and not identifiable to any person or entity; (ii) combined with the data of other organisations or additional data sources; and (iii) presented in a way which does not reveal your identity.
7.7 Data backup by us. We will perform backups of the System in as reasonable manner and at such times and intervals as are reasonable for our business purposes, we do not warrant that we are able to backup or recover specific Organisation Data from any period of time.
7.8 Data backup by you. You are solely responsible for the backup of your Organisation Data. We recommend that data backup should be conducted by you at a minimum on a weekly basis. Data exported from the System for backup or other purposes will be provided as a simple Comma Separated Value (CSV) file and may not contain all or every field held within the Service. It will contain a minimum set of information for the Enquirer, such as name, mobile, address and email (provided these have been entered into the System) required to allow you to make contact with the original Enquirer to re-establish the record and Enquirer Profile. NOTE: NOT ALL DATA CONTAINED WITHIN THE SERVICE, SUCH AS ACTIVITIES, EVENTS, CHARTS, ATTACHMENTS ETC. ARE DOWNLOADED INTO THE DATA FILE.
7.9 Data export. While we will use our reasonable endeavours to ensure that Organisational Data that can be exported from the System is prepared in an appropriate format to permit that same data to be imported into your Student Management System, we do not guarantee that all Student Management Systems are supported or that data will not need to be translated or adapted in order to complete the import. You are solely responsible for the transfer of data held within the System to any other third party platform such as your Student Management Systems, and for any translation or adaptation of that data to complete the importation into that platform, other than where you pay for Optional Data Export (in which case our responsibility is limited as set out in section 4.10 (Optional Assistance)).
8.1 Definition. “Confidential Information” means oral, electronic or written information disclosed by a party that is designated confidential or that reasonably should be understood to be confidential given its nature and the circumstances of its disclosure. Your Confidential Information includes, but is not limited to, Organisation Data. Our Confidential Information includes, but is not limited to, information pertaining to the features, functionality and performance of the Service, and pricing. Confidential Information does not include information that: (i) is now or becomes generally known or available to the public without breach of these Terms by the receiving party (the “Recipient”); (ii) was acquired by the Recipient without restriction on its use or disclosure before the information was received from the disclosing party (the “Discloser”); (iii) is obtained by the Recipient without restriction on its use or disclosure from a third party authorized to make the disclosure; or (iv) is independently developed by the Recipient without using or referring to the Discloser’s Confidential Information.
8.2 Protection of Confidential Information. The Recipient may only use the Discloser’s Confidential Information to exercise its rights and perform its obligations under these Terms. The Recipient must maintain the confidentiality of the Discloser’s Confidential Information with at least the same degree of care that it uses to protect its own confidential and proprietary information (including but not limited to maintaining reasonable administrative, physical, and technical safeguards) and no less than a reasonable degree of care. The Recipient must not disclose any of the Discloser’s Confidential Information except to Recipient’s employees, contractors and agents who need to know the information for a valid purpose, or to their legal or financial advisors in order to obtain advice in connection with these Terms, in which case Recipient must cause these recipients to agree to and abide by commercially reasonable confidentiality terms and remains responsible for compliance by those recipients. Each party has the right to obtain an injunction (without having to post a bond) to prevent any breach or continued breach of this section.
8.3 Compelled Disclosure. If the Recipient is required by law or a valid court or government order to disclose any of the Discloser’s Confidential Information, then (to the extent permitted under law) the Recipient must promptly notify the Discloser in writing of the required disclosure so that the Discloser may seek to protect its Confidential Information. The Recipient must cooperate with the Discloser in seeking such protection. If the Recipient is required to disclose the Discloser’s Confidential Information, it must disclose only the portion of the Confidential Information legally required and must use reasonable efforts to obtain reliable assurances that the Confidential Information will be treated confidentially to the maximum extent possible.
9. Privacy and security
9.3 Disclaimer. We make no warranty as to the suitability of the Service in regard to your privacy obligations at law or contract, and it is your responsibility to determine whether the Service is appropriate for your circumstances.
9.5 Security. We, and our third party cloud hosting provider, implement and maintain security measures designed to protect your Organisation Data from unauthorised access, destruction, use, modification or disclosure. Our Security Policy, as updated from time to time, provides further information on the security measures for our System. You must not, and you must ensure that your Users do not, do anything to prejudice the security or privacy of the System or the information stored on it.
10. Fees and billing
10.1 Fees. Your right to access and use the Service and our Assistance is subject to payment of all Fees. All Fees are:
a. quoted in Australian dollars, except as otherwise provided on your Proposal Document;
b. quoted exclusive of Taxes; and
c. non-refundable and non-cancellable, except as described in section 4.4 (Changes to the Service), section 11 (How we can change these Terms), section 14.1 (Termination for cause) or as required by law.
10.2 Invoicing and payment. We will invoice you according to the due dates and other terms on the Proposal Document. Unless the Proposal Document states otherwise, Fees are due net 30 days from the date of invoice. You must provide us with complete and accurate billing and contact information and promptly notify us of any changes throughout the Subscription Term.
10.3 Ordering through a Reseller. If you Placed an Order through a Reseller:
a. Instead of receiving an invoice from us and paying us, you will receive an invoice from the Reseller and pay the Fees to the Reseller, as agreed between you and the Reseller. We may suspend or terminate your right to access the Service if we do not receive the corresponding payment from the Reseller.
b. Your Tier level and other details for your Organisation (including your billing and contact information) will be as stated in the Proposal Document placed with us by the Reseller on your behalf, and the Reseller is responsible for the accuracy of any such Proposal Document as communicated to us. You must provide the Reseller with complete and accurate billing and contact information and promptly notify the Reseller of any changes throughout the Subscription Term.
c. If you are entitled to a refund under these Terms, then unless we otherwise specify, we will refund any applicable Fees to the Reseller and the Reseller will be solely responsible for refunding the appropriate amounts to you.
d. Resellers are not authorised to modify these Terms or make any promises or commitments on our behalf, and we are not bound by any obligations to you other than as set forth in these Terms.
e. The Fees payable by the Reseller to us for your use of the Service under these Terms will be deemed the amount actually paid or payable by you to us under these Terms for purposes of calculating the liability cap in section 13.1 (Liability cap).
10.4 Overdue Fees. If we do not receive a Fee by the due date, we may:
a. suspend your access to the Service until all Fees are paid in full; and / or
b. terminate these Terms and your right to access the Service in accordance with section 14.1 (Termination for cause).
We otherwise reserve all rights and available remedies to collect overdue Fees from you.
10.5 Payment Disputes. If you dispute an invoiced amount in good faith, you must give us written notice with detailed support of the dispute as soon as possible after your receipt of the invoice and before it becomes due. If you fail to do so, and fail to pay the Fees, we may exercise the rights in section 10.4 (Overdue Fees). If no notice of dispute is received within 90 days of your receipt of the invoice, you waive your right to dispute that invoice, and the invoice will be deemed accurate and valid. This section does not waive or alter your obligation to pay all undisputed amounts invoiced when due.
10.6 Adding Campuses. If you would like to add another campus to your subscription during a Subscription Term you will need to contact us. Where we consent to you adding a campus to your subscription this will be subject to your acceptance of an amendment to your Proposal Document and payment of additional Fees as specified in that amended Proposal Document.
10.7 Additional assistance. You agree that we are entitled to charge and invoice you for an additional amount that is reasonable for the assistance and services we perform where:
a. we are required to provide any assistance or perform any services for you outside of the scope of the Assistance that is expressly included within the Fees, as set out in these Terms; or
b. the provision of our Assistance is delayed or requires additional effort as a result of changes or complexities outside of our control (and not caused by our breach of these Terms).
10.8 Taxes. All Fees are exclusive of all taxes, duties and similar charges, including any applicable sales, excise, or use taxes in the jurisdiction where the payment is either made or received (“Taxes”). You must pay any Taxes directly to the relevant authority or to us, as required by law. Where we are liable for any Taxes in relation to the Service or our Assistance (excluding Taxes based on our net income, property or employees), you must pay to us an amount equal to that liability in addition to the Fees. If you are exempt from paying Taxes, you may provide us with a valid tax exemption certificate and we will use reasonable efforts to provide you with documents that may enable you to obtain a credit or refund (if available) from the relevant authority for the Taxes paid. We, or our Reseller where applicable, will include any applicable sales tax, such as GST, on your Proposal Document or invoice.
10.9 GST. GST is applicable to any Fees charged by the us to Organisations within Australia. All Fees are exclusive of GST. We will issue an Australian Organisation a Tax Invoice for all Fees for which GST applies.
10.10.Credit checks. You authorise us to use your information for the purposes of obtaining a credit assessment or to otherwise make investigations as to your payment history.
11. How we can change these Terms
11.1 Right to change Terms and Policies. We may modify any provision of these Terms including the Policies (for example to respond to changes to law, our Service or our business) from time to time by notice to you via publishing the modified Terms and Policies on our Website and providing written notice to your Primary Administrator in accordance with section 17.3 (Notices). You should look at our Website regularly for changes to these Terms.
11.2 When changes become effective. Unless otherwise stated in a notice associated with the modification, all modifications to the Terms and Policies will take effect for your use of the Service and Assistance the next time one of your Users login to the Service (upon which time the User can choose to review and accept in order to continue) or fourteen days after they are first notified (whichever occurs earlier). If the effective date of such modification is during your then-current Subscription Term and you object to the modification (acting reasonably) then you must discontinue your use of the Service and, as your sole and exclusive remedy, you may terminate your subscription by notice to us and receive a pro-rata refund of the Subscription Fee for the remaining unused portion of the prepaid Subscription Term. To exercise this right, you must give us notice from your Primary Administrator of your objection and termination within 30 days of us providing notice of the modifications.
12. Warranties and disclaimers
12.1 Mutual Warranties. Each party represents that it: (i) has the legal power and authority to enter into these Terms; (ii) will comply with all applicable laws during the Term; and (iii) will use reasonable efforts to avoid transmitting to the other party any harmful or malicious code, files, scripts, agents or programs (however we are not responsible for any harmful materials submitted by you, your Users or Enquirers).
12.2 Australian Consumer Law. Our Service and Assistance comes with guarantees that cannot be excluded under the Australian consumer law. If you constitute a consumer under the Australian Consumer Law in accessing the Service and Assistance and these guarantees are not met, you are entitled to a replacement or refund for a major problem with a product, compensation for the drop in value below the price paid or a refund for a major problem with a service, and compensation for any other reasonably foreseeable loss or damage. You are also entitled to have a product repaired or replaced if the product fails to be of acceptable quality and the problem does not amount to a major problem. Nothing in these Terms is intended to remove your rights under the Australian consumer law. If we are entitled to limit the remedies available to you for breach of such guarantees, we expressly limit our liability to either supplying the affected services again or paying the cost of supplying the services again.
12.3 Warranty Disclaimer. Except as expressly provided in this section 12, the Service and our Assistance are provided “as is” and we make no warranties of any kind, whether express, implied, statutory or otherwise, and specifically disclaim all implied warranties, including but not limited to any warranties of merchantability, title, non-infringement or fitness for a particular purpose, to the maximum extent permitted by applicable law. Without limiting the foregoing, we do not make any warranties or representations that the functions performed by the Service will meet all of your requirements, that the operation of the Service will be uninterrupted or error free, that all defects in the Service will be corrected, that the Service or our Assistance will be available in all languages or all countries, or that we will preserve or maintain your data without loss. You understand that use of the Service and our Assistance necessarily involves transmission of your data over networks that we do not own, operate or control, and we are not responsible for any of your data lost, altered, intercepted or stored across such networks. We cannot guarantee that our security measures will be error-free, that transmissions of your data will always be secure or that unauthorised third parties will never be able to defeat our security measures or those of our third party service providers. We will not be liable for delays, interruptions, service failures or other problems inherent in use of the internet and electronic communications or other systems outside our reasonable control.
12.4 Third Party Content. Any Third Party Content made available or accessed via the Service is provided by such third party, exclusive of any warranty from us. We are not responsible for any access to or use of your Organisation Data by third party providers of Third Party Content or their products or services, or for the security or privacy practices of any such third party provider or its products or services.
13. Limitation of liability
13.1 Liability cap. Except as set out in section 13.3 (Exceptions to limitations), in no event will either party’s aggregate liability arising out of or related to these Terms, whether in contract, tort or under any other theory of liability, exceed the total amount paid by you hereunder in the 12 months preceding the incident giving rise to the liability. The foregoing limitations will not apply to organisation’s payment obligations.
13.2 Exclusion of consequential loss. Except as set out in section 13.3 (Exceptions to limitations), in no event will either party have any liability to the other party for any loss of use, lost or inaccurate data, inaccuracy of results, computer failure or malfunction, business interruption, lost profits or revenues or for any consequential, incidental, indirect, special, cover or punitive damages, however caused, whether in contract, tort or under any other theory of liability, and whether the party has been advised of the possibility of such damages. The foregoing will not apply to the extent prohibited by applicable law.
13.3 Exceptions to limitations. The limitations and exclusions of liability in sections 13.1 (Liability cap) and 13.2 (Exclusions of consequential loss) do not apply to:
a. our liability under section 12.2 (Australian Consumer Law);
b. amounts owed by you under any invoice, or your obligation to pay the Fees;
c. your breach of section 5.2 (Your responsibilities), 5.5 (Prohibitions) 7.3 (Your representations for data) or 9.2 (Your privacy obligations); or
d. your liability under the indemnity in section 13.4 (Indemnity).
13.4 Indemnity. To the fullest extent allowed by applicable law, you agree to indemnify and hold us, or affiliates, officers, agents, employees, and partners harmless from and against any action, liabilities, claims, losses, damages, proceedings, expenses (including legal costs) arising from or which is directly or indirectly related to:
a. any breach, or alleged breach, of Intellectual Property Rights or other proprietary rights or interests of third parties; or
b. any claims or disputes brought by your Users or Enquirers arising out of their use of the Service or receipt of communications sent via the Service.
14.1 Termination for cause. Either party may terminate these Terms and your subscription by notice to the other party if (i) the other party is in material breach of these Terms and fails to cure the breach within 10 Business Days of receiving written notice from the non-breaching party; or (ii) the other party becomes the subject of a petition in bankruptcy or any proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors (or is subject to any event, which, under the law of any relevant jurisdiction, has an analogous or equivalent effect to any of the foregoing). If you terminate due to our material breach, your sole and exclusive remedy is a pro-rata refund of the Subscription Fee for the remaining unused portion of the prepaid Subscription Term after the termination date. If we terminate for your material breach you will not receive any refund of prepaid Fees.
14.2 Termination for convenience by you. You may choose to stop using the Service and terminate these Terms and your subscription at any time for any reason by providing written notice to us from your Primary Administrator, however on such termination (i) you will not be entitled to a refund of any prepaid Fees; and (ii) any unpaid Fees for the then-current Subscription Term, together with all Fees for services that have been provided before the date of termination, will become immediately due and payable.
14.3 Termination for convenience by us and discontinuing the Service. We can terminate these Terms for any reason at any time by giving 30 days’ notice to you. Without limiting the foregoing, these Terms will automatically terminate on the date we discontinue the Service in full. Where we terminate under this section 14.3 or we discontinue the Service in full during your Subscription Term you will receive a pro-rata refund of the Subscription Fee for the remaining unused portion of the prepaid Subscription Term.
15. Effects of expiry or termination
15.1 Subscription ends. On expiry or termination of these Terms for any reason your subscription will end and you must immediately cease all use of and access to the Service, except to the limited extent set out in section 15.4 (Access and deletion of Organisation Data).
15.2 Surviving provision. Sections 1 (Documents forming part of these Terms), 5.3 (Users and Enquiry Tracker Accounts), 5.5 (Prohibitions), 6 (Intellectual Property), 7 (Data), 8 (Confidentiality), 10 (Fees and billing), 12 (Warranties and disclaimers) 13 (Limitation of liability), 15 (Effects of expiry or termination), 16 (General) and 18 (Definitions and Interpretation) will survive termination and expiry. All other rights and obligations will be of no further force or effect.
15.3 Accrued rights and remedies. Expiry or termination of these Terms is without prejudice to and does not affect the accrued rights or remedies of any of the parties arising in any way out of these Terms up to the date of expiry or termination.
15. 4 Access and deletion of Organisation Data. You will not have access to your Organisation Data in the Service after expiry or termination of these Terms and therefore you should ensure that you export any Organisation Data that you wish to continue accessing after that time (subject to the limitations noted in sections 7.7 (Data backup) and 7.9 (Data export)) using the functionality provided by the Service within your Subscription Term. Notwithstanding the foregoing, where you request it, we may make the Service available to you for up to 30 days after expiry or termination of these Terms for the sole purpose of exporting your Organisation Data. Where we provide such access, you must not use the Service for any other purpose. We are entitled to permanently delete your Organisation Data, without any liability to you, on the earlier of (i) receiving confirmation from your Primary Administrator that you have extracted all Organisation Data that you would like to continue accessing; and (ii) the expiry of 30 days after the expiry or termination of these Terms.
16 Dispute Resolution
16.1 Negotiation. If there is a dispute between the parties relating to or arising out of these Terms, then within ten (10) Business Days of a party notifying the other party of a dispute (“Dispute Notice”), senior representatives from each party must meet (or discuss directly via the telephone or internet) and use all reasonable endeavours acting in good faith to resolve the dispute by joint discussions.
16.2 Mediation. If the dispute between the parties is not resolved within ten (10) Business Days of the Dispute Notice, the dispute must be resolved by mediation in accordance with the Australian Centre for International Commercial Arbitration (“ACICA”) Mediation Rules current at the time of reference to mediation. The mediation is to take place in Melbourne, Australia and be administered by the ACICA.
16.3 Arbitration. If the dispute between the parties is not settled within 20 Business Days of being referred to mediation, or such other period as agreed in writing between the parties, then the parties must submit the dispute to arbitration under the ACICA Arbitration Rules current at the time of the reference to arbitration, except to the extent otherwise set out in this section: (i) there will be one arbitrator, the language of the arbitration will be English, the place of the arbitration will be Melbourne, and the proper law of the arbitration will be the laws in force in Victoria, Australia; (ii) any award made by the arbitral tribunal will be final and binding on the parties; (iii) the costs of arbitration will be borne by the losing party, unless otherwise determined by the arbitration award.
16.4 Court proceedings. A party may not commence court proceedings in relation to a dispute relating to or arising out of these Terms until it has exhausted the above Negotiation, Mediation and Arbitration procedures in this section 16, unless the party seeks appropriate urgent injunctive or other interlocutory relief.
17.1 Governing law and jurisdiction. These Terms are governed by and will be construed in accordance with the laws of the State of Victoria, Australia. The parties irrevocably submit to the exclusive jurisdiction of the courts of that State and the Commonwealth of Australia in respect of all matters arising out of or relating to this Agreement, its performance or subject matter. The terms of the United Nations Convention on Contracts for the Sale of Goods do not apply to these Terms.
17.2 Injunctive relief; enforcement. Notwithstanding anything to the contrary in section 16 (Dispute Resolution) or 17.1 (Governing law and jurisdiction), nothing in these Terms prevents us from seeking injunctive relief with respect to infringement of confidentiality obligations or Intellectual Property Rights, or enforcement or recognition of any award or order in any appropriate jurisdiction.
17. 3 Notices. Notices under this Agreement must be in writing. We may provide notice to you via email to the email address provided for your Primary Administrator. It is your responsibility to ensure that any change to the Primary Administrator or the contact details of your Primary Administrator are notified to us, and the email address remains valid and current so that we are able to send notices and other information to you. You agree that a consent, notice or communication under these Terms is effective if sent via electronic communication to you. Any notice to you will be deemed given on the first Business Day after we send it. You must provide any notice to us by registered post to Enquiry Tracker Pty. Ltd. (ABN 41 622 948 734), c/o Maccora & Associates, Level 1, 300 Waverley Road, Malvern East VIC, 3145, Australia, with a copy emailed to l[email protected]acker.net. Your notices to us will be deemed given on receipt by us.
17. 4 Force Majeure. Neither party will be responsible for failure or delay of performance (other than failure to pay Fees) if caused by an event outside the reasonable control of the obligated party, including but not limited to an electrical, internet, or telecommunication change or outage not caused by the obligated party; government restrictions; strike or blockage; war or act of terrorism; natural disaster; epidemic or pandemic; or illegal acts of third parties (“Force Majeure Event”). Each party will use reasonable efforts to mitigate the effect of a Force Majeure Event.
17.5 Assignment. You may not assign or transfer these Terms or your subscription without our prior written consent, except that you may assign these Terms together with your subscription in their entirety to your successor as part of a merger, acquisition, corporate reorganisation, or sale of all or substantially all of your assets or voting securities, provided that you provide us with prompt notice of the assignment and the assignee agrees in writing to assume all of your obligations under these Terms. Any attempt by you to assign these Terms other than as expressly authorised above will be null and void. We may assign our rights, or novate our rights and obligations, under these Terms (in whole or in part) to any person without your consent.
17.6 Relationship of the Parties. The parties are independent contractors. These Terms do not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
17.7 Waiver. No failure or delay by either party to exercise any right under these Terms will constitute a waiver of that right, unless expressly stated in these Terms.
17.8 Amendments. Except as set out in section 11 (How we can change these Terms), any change or amendment to these Terms must be executed in writing by an authorised signatory of each party.
17.9 Severability. If any provision of these Terms is held by a court of competent jurisdiction to be invalid or unenforceable, the provision will be modified to the minimum extent necessary to make it enforceable. The provision will be disregarded only if such modification is not possible or is prohibited by law. The remaining provisions of these Terms will remain in effect.
17.10.Disclaimer. Each party acknowledges that it has not relied on any representation, warranty or statement made by any other party, other than as expressly set out in these Terms.
17.11.Entire Agreement. These Terms are the entire agreement between the parties and supersede all prior and contemporaneous agreements, proposals or representations, written or oral, concerning their subject matter. No terms in your purchase order or other order business or ordering documents (excluding the Proposal Document) will be incorporated into these Terms, regardless of any terms to the contrary, and we expressly reject all such terms.
18. Definitions and interpretation
18.1 Definitions. In these Terms:
- “Assistance” means Training, Support and any Optional Assistance you acquire from us.
- “Australian Consumer Law” means Schedule 2 of the Competition and Consumer Act 2010 (Cth).
- “Business Day” means a day (other than a Saturday, Sunday or public holiday) on which banks are open for general banking business in the State of Victoria, Australia.
- “Business Hours” means between 9am and 5pm on a Business Day.
- “Confidential Information” has the meaning given in section 8.1.
- “Enquirer” means a parent, family member or guardian, or an agent (for example, an authorised adult or representative) acting on their behalf, seeking information when selecting an Organisation on behalf of their children or representatives.
- “Enquiry Tracker Account” means an account registered to use the Service with its own account credentials (username and password).
- “Enquirer Profile” means a profile about an Enquirer and those they are responsible for (e.g. themselves, their child). The Enquirer Profile may include information such as the Enquirer’s contact details, and other Student Information pertaining to their child, and any attachments (such as birth certificates; school reports etc). When an Enquirer shares this information with an Organisation, the Enquirer Profile becomes part of that Organisation Data;
- “Establishment Fees” mean a one time up front set up fee as set out in the Proposal Document.
- “Feedback” means recommendations, suggestions, comments, enhancement requests or other feedback or any ideas related to the Service or Assistance.
- “Fees” mean the fees and charges payable by you to us for use of the Services and our Assistance, including the Establishment Fees, Subscription Fees and fees for any Optional Assistance.
- “GST” has the meaning given by the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
- “Intellectual Property Rights” means, all present and future intellectual and industrial property rights conferred by statute, at common law or in equity and wherever existing, including (i) patents, designs, copyright, Moral Rights, rights in circuit layouts, trade marks, know how, brand names, domain names, inventions, database rights, product names, trade secrets and any other rights subsisting in the results of intellectual effort in any field, whether or not registered or capable of registration; (ii) any application or right to apply for registration of any of these rights; (iii) any registration of any of those rights or any registration of any application referred to in paragraph (ii); and (iv) all renewals and extensions of these rights.
- “List Price” means our standard pricing for use of the Service and our Assistance, as notified by us to our customers from time to time.
- “Moral Rights” means (i) moral rights pursuant to the Copyright Act 1967 (Cth); or (ii) any rights analogous to the rights set out in the Article 6bis of the Berne Convention for Protection of Literary and Artistic Works 1886 (as amended from time to time).
- “Optional Assistance”, “Optional Data Upload” and “Optional Data Export” each have the meaning given in section 4.10.
- “Optional Module” means a module or feature of the Service for which an additional fee is payable, as identified in the Proposal Document.
- “Organisation” means a school or educational institution, and more specifically the legal entity responsible for the primary governance of that school or other educational institution, whether this is a body corporate (statutory or otherwise), corporation, incorporated or unincorporated association, cooperative, trust or otherwise organised body.
- “Organisation Data” means all electronic data or information that is uploaded or input into the Service by your Users or Enquirers, including Enquirer Profiles.
- “Place an Order” has the meaning given in section 2.3.
- “Primary Administrator” has the meaning given in section 5.4.
- “Product Bug” means any verifiable defect in the Service that is causing the Service to not be working as expected and may generate an error.
- “Proposal Document” means a written proposal or other quotation approved by us and issued to you describing the fees payable by you for use of the Service.
- “Reseller” means one of our authorised partners or resellers.
- “Security Policy” means our security policy for Enquiry Tracker as updated form time to time, which can be found at – https://www.enquirytracker.net/security/
- “Service” means our proprietary software-as-a-service solution branded ‘Enquiry Tracker’ accessible via the internet (at https://app.enquirytracker.net or another location notified by us from time to time).
- “Specifications” means the description and specifications for the Service as updated from time-to-time, which can be found at – https://enquirytracker.net/specifications.
- “Student Information” means any special needs, disabilities, other information (e.g. gender, age, etc), and special interests about a child.
- “Student Management System” means an Organisation’s CRM system for managing students and related contacts.
- “Subscription Fees” mean the fees for use of the Service, payable annually in advance, as set out in the Proposal Document.
- “Subscription Term” means the period of your subscription to the Service, being the Initial Subscription Term and all Renewal Terms, unless terminated earlier in accordance with these Terms.
- “Support” means the services described in section 4.8.
- “Third Party Content” means any web sites, platforms, content, products, services, and information not developed by us that are made available to you through use of the Service (including those used in providing functionality of the service, as described at https://www.equirytracker.net/thirdparty/, or that you use in conjunction with the Service.
- “Tier” means the corresponding level outlined on the Proposal Document that the Organisation’s organisation falls within.
- “Training” means the services described in section 4.9.
- “User” is any individual who can access the Service on your behalf using an Enquiry Tracker Account.
- “WebForm” means Enquiry Profile data captured via an electronic form such as for event registrations, requesting a prospectus or general enquiry.
- “Website” means www.enquirytracker.net including all password protected areas and subdomains (eg app.enquirytracker.net.
18.2 Interpretation. The following rules apply to the interpretation of these Terms unless the context requires otherwise:
a. Headings are for reference only and do not affect the meaning or interpretation of these Terms.
b. The singular includes the plural and the opposite also applies.
c. If a word or phrase is defined, any other grammatical form of that word or phrase has a corresponding meaning.
d. A reference to a section refers to the section in these Terms.
e. A reference to legislation is to that legislation as amended, re-enacted or replaced, and includes any subordinate legislation issued under it.
f. Mentioning anything after includes, including, or similar expressions, does not limit anything else that might be included.
g. A reference to a party to these Terms or another document includes that party’s successor and permitted substitutes and assigns (and, where applicable, the party’s legal personal representatives).
h. A reference to “person” includes a natural person, a firm, a body corporate, an unincorporated association, trust, partnership or an authority.
i. A reference to information is to information of any kind in any form or medium, whether formal or informal, written or unwritten, for example, computer software or programs, concepts, data, drawings, ideas, knowledge, procedures, source codes or object codes, technology or trade secrets.
j. If something is to be or may be done on a day that is not a Business Day then it must be done on the next Business Day.