End User License Agreement
People Diagnostix Pty Limited (People Diagnostix) is a privately held entity which provides Flourishing at School (FAS), a cloud-based software solution for schools wanting to excel at whole school wellbeing.
People Diagnostix is the creator and owner of FAS, the Flourishing Profile (FP) survey (Software) and related learning products and services (Services).
You can contact us at any time by using the information provided here:
|Name||People Diagnostix Pty Ltd|
|Physical address and the address for receipt of legal service of documents||Enterprise Unit 3, Suite 4, 9 De Laeter Way, Technology Park, Bentley, Western Australia, 6102|
|Phone number||+61 (0) 1300 739 426|
|Email address||[email protected]|
This End User License Agreement (Agreement) sets out the obligations and conditions between school customers as Subscribers (Subscriber, You, Your) and People Diagnostix, relating to use of the Services and Software.
PLEASE READ THIS AGREEMENT CAREFULLY. IT IS AN EXPRESS CONDITION THAT ALL USERS WHO ACCESS THE SERVICES AND USE THE SOFTWARE ACCEPT THE TERMS AND CONDITIONS OF THIS AGREEMENT.
THIS AGREEMENT APPLIES TO YOUR USE OF THE SERVICES, AS THE SCHOOL CUSTOMER OF PEOPLE DIAGNOSTIX AND WITHOUT LIMITATION, YOUR SCHOOL STUDENTS AND STAFF, WHO ACCESS THE SERVICES AND USE THE SOFTWARE THROUGH YOUR CUSTOMER ACCOUNT.
BY CLICKING ON THE “I AGREE” BOX BELOW, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO ANY TERM OF THIS AGREEMENT, CLICK THE “I DO NOT AGREE” BOX, EXIT IMMEDIATELY AND DO NOT USE THE SERVICES.
YOU WARRANT AND AGREE THAT YOU HAVE THE NECESSARY CONSENT FROM STUDENTS, THEIR PARENTS AND GUARDIANS, AND FROM STAFF, TO GRANT STUDENTS AND STAFF ACCESS TO YOUR USER ACCOUNT, AND BY CLICKING ON THE “I AGREE” BOX BELOW, YOU AGREE THAT YOU HAVE IN TURN BOUND ALL END USERS TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO ANY TERM OF THIS AGREEMENT, CLICK THE “I DO NOT AGREE” BOX, EXIT IMMEDIATELY AND DO NOT USE THE SERVICES.
1.1 People Diagnostix provides the Services and Software Licenses (Licenses) to Schools, as Subscribers, to use the Services for a license fee.
1.2 The Subscriber desires to use the Services for its internal purposes, specifically to assess the degree to which individuals have developed the “pillars” of good mental health to stay well and optimise quality of life.
1.3 Legal relationships exist between (i) People Diagnostix and School Subscriber customers, and (ii) School Subscriber customers and their students and staff. People Diagnostix has no legal relationship with the students and staff of School Subscriber customers. Subscribers must ensure that they obtain the necessary consent from students, their parents and guardians, and staff to access and use the Services. Subscribers must also ensure that students and staff are aware of and agree to the terms and conditions of this Agreement.
1.4 People Diagnostix is willing to provide access to the Service for the Subscribers internal use for students and Staff for whom Licenses have been acquired (Authorised Users) pursuant to the terms and conditions of this Agreement.
1.5 People Diagnostix and the Subscriber acknowledge and agree that this Agreement is effective and in force immediately upon the date that the Subscriber clicks the “I agree” box (Effective Date).
NOW THEREFORE, in consideration of the mutual promises contained herein and other considerations, the parties agree as follows:
a. People Diagnostix grants to the Subscriber, and the Subscriber accepts from People Diagnostix, a limited, non-exclusive, non-transferrable right to access and use, and to permit the Authorised Users to access and use the Services solely for the Subscriber’s internal school use.
b. The Services shall not be used by any person that is not the duly authorised representative of the Subscriber and/or an Authorised User.
c. The Subscriber must ensure that Authorised Users use the Services in accordance with the terms and conditions of this Agreement.
d. The Subscriber acknowledges that its right to use the Services will be web-based only, and pursuant to the terms of this Agreement. The Software will not be installed on any servers or other computer equipment owned or controlled by the Subscriber or Authorised Users.
2. Sign-up and Commencement of Services
2.1 The amount payable for the Subscriber’s use of the Services and the License provided hereunder will be set out in a quotation following the online sign-up process on the People Diagnostix’s Flourishing at School Website.
2.2 The amount payable comprises (i) a one-off base rate, (ii) a per user license fee for staff and (iii) a per user license fee for students (Subscription Fee).
2.3 People Diagnostix will submit an invoice (Commencement Invoice) as per the quotation to the Subscriber, and the Subscriber agrees to pay in full within seven (7) days of the invoice date.
2.4 Services will not commence until full payment has been received.
3. Subscription Commencement Date
3.1 The Subscription Commencement Date is the date of the Commencement Invoice.
3.2 The Term of this Agreement shall commence on the Commencement Date, and shall continue until terminated as provided for herein.
4. Subscription Term
4.1 The initial Subscription Term will be twelve (12) calendar months.
5. Renewal Terms
5.1 Each Subscription Renewal Term will be twelve (12) calendar months.
5.2 The Subscriber will be contacted towards the end of the Subscription Term for confirmation of whether they would like to extend the Subscription Term for an additional (12) calendar months.
5.3 If the Subscriber elects to extend their Subscription Term they will be issued with a new invoice. The new Subscription Term will be for twelve (12) calendar months from the date of the end of the previous Subscription Term.
6. Subscription Fee
6.1 The Subscriber shall pay to People Diagnostix the Subscription Fee for the initial Subscription Term of 12 months.
6.2 The Subscription Fee, less the once-off base rate, for all subsequent Subscription Terms of 12 months each shall be paid to People Diagnostix against an invoice prior to the commencement of the new Subscription Term.
6.3 The amount of the Subscription Fee does not include any applicable taxes. The Subscriber is liable for any and all applicable taxes. Fees are quoted in Australian Dollars.
6.4 People Diagnostix reserves the right to increase the Subscription Fee at the commencement of each Subscription Term.
6.5 The Subscriber shall provide a valid credit card, electronic funds transfer or other acceptable method of payment to People Diagnostix and shall take all necessary steps to authorise payment of the Subscription Fee.
6.6 In the event that payment to People Diagnostix is outstanding for more than 7 (seven) days from notice by People Diagnostix, access to the Services will be denied and the Services terminated.
6.7 Any additional payment terms between the Subscriber and People Diagnostix shall be agreed to in Writing, including but not limited to an invoice, billing agreement, or other Written document.
6.8 “Writing” and “Written” for the purposes of this Agreement shall include writing on paper and email (including email provided through the functionality on the People Diagnostix’s web and mobile sites, but shall not include text messages or other electronic forms of writing.
6.9 “Sign” and “Signature” shall include signs made by hand on paper, and electronic signatures, including the “click-wrap” signature facility provided to Sign this Agreement by clicking the box provided to demonstrate agreement and the intention to be bound by the terms of this Agreement.
7.1 Upon termination of this Agreement for any reason whatsoever, all rights, licenses and subscriptions granted to the Subscriber shall immediately terminate. The Subscriber shall cease using the Services and shall prohibit Authorised Users from using the Services.
8. Intellectual Property Rights
8.1 The Subscriber acknowledges and agrees that all right, title, and interest in and to the Services and the Software, together with its codes, sequences, derivative works, organisation, structure, interfaces, documentation, data, trade names, trademarks, or other related materials (People Diagnostix IP), is and at all times shall remain, the sole and exclusive property of People Diagnostix. People Diagnostix IP contains trade secrets and proprietary information owned by People Diagnostix and protected by Australian law and international agreements. Except for the right to use the Service, as expressly provided for herein, this Agreement does not grant to the Subscriber any rights to or in copyright, patents, trade secrets, trade names, service names or marks, trademarks (whether registered or not), databases, or any rights or licenses with respect to the Services or the Software.
8.2 The Subscriber shall not attempt, or directly or indirectly allow any Authorised User or third party to attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, reverse engineer, disassemble, reverse compile, download, transmit or distribute all or any portion of the Services and/or Software in any form or media or by any means.
8.3 The provisions of the Intellectual Property Rights clause shall survive termination of this Agreement.
9.1 People Diagnostix shall use commercially reasonable efforts to make the Service available on a twenty-four hours per day, seven days per week (24×7) basis during the Term of this Agreement, except for:
9.1.1 Scheduled system back-up or other on-going maintenance as required and scheduled in advance by People Diagnostix; or
9.1.2 For any unseen cause beyond People Diagnostix’s reasonable control, including but not limited to internet service provider or communication network failures, or Force Majeure events.
10.1 People Diagnostix will monitor performance indicators on the systems and network infrastructure (its own and that of third party service providers) in order to assess the overall performance of its Services, and will take reasonable steps to address systems and network infrastructure as required to maintain satisfactory performance of the Services.
10.2 People Diagnostix reserves the right to monitor, and to restrict the Subscriber’s ability to use the Service, if the Subscriber is using excessive computing resources which are impacting the performance of the Service for other Subscribers. People Diagnostix agrees to notify the Subscriber in cases where it restricts use, and in good faith work with Subscribers to determine appropriate solutions.
11. Maintenance and Support
11.1 People Diagnostix shall maintain the Software and the Services and provide patches and fixes where necessary at no extra cost.
11.2 The maintenance provision in 11.1 shall not include major software releases, new versions of the Software, additional functionality, or custom programing, which People Diagnostix, at its sole discretion, may provide at an additional cost and as otherwise agreed between the Subscriber and People Diagnostix.
12. Default and Breach
12.1 The Subscriber will be in default of this Agreement if it fails to make any payment when due, and fails to cure the default within seven (7) days following receipt of Written notice thereof by People Diagnostix.
12.2 In addition to the monetary breach described above, either Party will be in default of this Agreement if the Party is in material breach of this Agreement and fails and fails to cure such beach within fourteen (14) days following receipt of Written notice thereof from the non-breaching Party.
12.3 If a Party is in default, then the non-breaching Party may terminate this Agreement or seek any other remedies available at law or in equity, except as otherwise provided in for this Agreement.
12.4 In the event the Subscriber breaches or attempts to breach any of the provisions of this Agreement, People Diagnostix shall have the right, in addition to such other remedies that may be available, to injunctive relief enjoining such breach or attempt to breach.
12.5 A breach by an Authorised User shall constitute a breach by the Subscriber.
13.1 If a Subscriber terminates its Subscription lawfully and in terms of this Agreement, People Diagnostix will refund the amount owed to the Subscriber, calculated on a pro-rata basis as of the date of cancellation, without any deductions. Refunds will be processed immediately and paid to an account of the Subscriber’s choice.
13.2 Under no circumstances will base rated be refunded.
14. Changes by The Subscriber to Services
14.1 At any time during the Initial or Renewal Term of this Agreement, or fourteen (14) days prior to termination of a Subscription Term, the Subscriber may, in Writing, request People Diagnostix to increase the number of Licenses provided for students and/or staff.
14.2 Fourteen (14) days prior to termination of any current Term, the Subscriber may, give notice in Writing to People Diagnostix to reduce the number of Licenses. A reduction in the number of Licenses is only effective for the following term if given fourteen (14) days prior to commencement of the next term.
14.3 AT NO TIME MAY THE NUMBER OF AUTHORISED USER LICENSES BE REDUCED DURING ANY TERM.
15. Changes by Us to Your Services
15.1 PEOPLE DIAGNOSTIX MAY CHANGE THE SERVICES AT ANY TIME AFTER GIVING SUBSCRIBERS THIRTY (30) DAYS NOTICE. AFTER RECEIVING NOTICE A SUBSCRIBER MAY CANCEL THEIR SUBSCRIPTION OR AGREE TO THE CHANGE. IF A SUBSCRIBER AGREES, THEY NEED TAKE NO ACTION. IF HOWEVER, A SUBSCRIBER DOES NOT AGREE, THE SUBSCRIBER MUST NOTIFY PEOPLE DIAGNOSTIX WITHIN THIRTY (30) DAYS OF THE DATE OF RECEIVING THE NOTICE OF CHANGE AND TERMINATE THE SERVICES. IF A SUBSCRIBER FAILS TO TERMINATE THE SERVICES IN THESE CIRCUMSTANCES, THEY WILL BE DEEMED TO HAVE AGREED TO THE CHANGE WHICH WILL BECOME PART OF THE AGREEMENT BETWEEN THE SUBSCRIBER AND PEOPLE DIAGNOSTIX.
16.1 In addition to and in no way limiting the requirements relating to People Diagnostix IP in 8 above, the Subscriber shall use reasonable efforts (but in no case less than the efforts used to protect its own proprietary information) to protect all proprietary, confidential and/or non-public information pertaining to or in any way connected to the Software, the Service, People Diagnostix’s financial, professional, other business affairs, and this Agreement (Confidential Information).
16.2 The Subscriber shall not disclose or publicise the Confidential Information without the prior Written Consent of People Diagnostix.
16.3 The Subscriber shall use reasonable efforts (but in no case less than the efforts used to protect its own proprietary information) not to disclose and not to use the Confidential Information for its own benefit or for the benefit of any other person or third party in any manner inconsistent with this Agreement.
16.4 The terms of confidentiality and non-disclosure in this Agreement shall terminate five (5) years from the date of termination of this Agreement.
16.5 The restrictions on disclosure shall not apply to information which was (i) generally available to the public at the time of disclosure, or later available to the public other than through the fault of the Subscriber, (ii) already known to the Subscriber prior to disclosure pursuant to this Agreement, (iii) obtained at any time lawfully from a third party under circumstances permitting its use or disclosure to others, or (iv) required by law or court order to be disclosed.
17. Privacy, Personal Information and Data Privacy
17.1 YOU ACKNOWLEDGE, UNDERSTAND AND AGREE THAT THE INFORMATION PROVIDED TO PEOPLE DIAGNOSTIX BY THE YOU THE SUBSCRIBER, AND AUTHORISED USERS, THROUGH THE SOFTWARE AND SERVICES AND/OR THIRD PARTIES, IS NECESSARY FOR THE PROVISION OF THE SERVICES.
17.2 YOU CONSENT TO INFORMATION BEING DISCLOSED TO THIRD PARTY SERVICE PROVIDERS AND/OR OTHER THIRD PARTIES WHERE SUCH DISCLOSURE IS NECESSARY FOR THE PERFORMANCE OF PEOPLE DIAGNOSTIX S OBLIGATIONS UNDER THIS AGREEMENT OR AS REQUIRED BY LAW.
17.3 YOU THE SUBSCRIBER, AND AUTHORISED USERS, ACKNOWLEDGE AND AGREE FURTHER THAT:
17.3.1 IN SUBSCRIBING TO THE SERVICES, AND THE INFORMATION COMMUNICATION TECHNOLOGIES UPON WHICH THE SERVICES DEPEND, YOU ARE GRANTING CONSENT TO A LIMITATION OF YOUR POSSIBLE RIGHT TO PRIVACY IN EXCHANGE FOR POSSIBLE IMPROVEMENTS IN WHOLE SCHOOL WELLBEING AND IMPROVED MENTAL HEALTH;
17.3.3 THE SUM OF ALL THE ALL INFORMATION DERIVED FROM THE SOFTWARE AND SERVICES AND/OR THIRD PARTIES AND PERSONAL DATA, AS WELL AS THE AGGREGATED INFORMATION WHICH RESULTS FROM PROCESSING, ANAYLSING AND IMPROVING THE SERVICES IS INTENDED TO IMPROVE WHOLE SCHOOL WELLBEING AND MENTAL HEALTH.
18. Limited Warrantee
18.1 People Diagnostix warrants that it has the power and authority to grant the Subscription (License) for the Services to the Subscriber under this Agreement.
18.2 EXCEPT FOR THE WARRANTEE SET FORTH HEREIN, THE SERVICES ARE PROVIDED ON AN “AS IS” BASIS AND PEOPLE DIAGNOSTIX DISCLAIMS ANY AND ALL OTHER WARRANTEES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTEES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
18.3 The benefits of the Services to Subscribers depend on each Subscriber and/or Authorised User’s use of the Services.
19. Limitation of Remedy and Liability
19.1 The Subscriber represents that it accepts sole and complete responsibility for:
19.1.1 The selection of the Services to achieve its intended results;
19.1.2 Use of the Services;
19.1.3 Results obtained from the service; and
19.1.4 The terms of any contracts between the Subscriber and Authorised Users.
19.2 PEOPLE DIAGNOSTIX HAS NO LEGAL RELATIONSHIP WITH THE SUBSCRIBER’S AUTHORISED USERS AND SHALL NOT BE LIABLE TO THEM IN ANY WAY WHATSOEVER. PEOPE DIAGNOSTIX MERELY PROVIDES ACCESS TO THE SERVICES FOR AND ON BEHALF OF SUBSCRIBERS, AND SUBSCRIBERS ALONE SHALL BE LIABLE TO AUTHORISED USERS.
19.3 People Diagnostix does not warrant that the Subscriber’s use of the Service will be uninterrupted or error-free. The Subscriber shall not assert any claims against People Diagnostix based on theories of negligence, gross negligence, strict liability fraud or misrepresentation, and the Subscriber shall defend People Diagnostix from any demand or claim, and indemnify and hold People Diagnostix harmless from any and all losses, cost, expenses, or damages, including reasonable legal fees, directly or indirectly arising from the Subscriber and Authorised Users’ use of the Services.
19.4 TO THE MAXIMUM EXTENT PERMITED BY APPLICABLE LAW, IN NO EVENT SHALL PEOPLE DIAGNOSTIX BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL, PUNITAVE, EXEMPLRY OR other DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS) ARISING OUT OF THE USE OF OR INABILITY TO USE THE SERVICE, WHETHER BASED ON CONTRACT, WARRANTY, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, EVEN IF PEOPLE DIAGNOSTIX HAS BEEN ADVISED OF SUCH DAMAGES.
19.5 In any event, under no circumstances shall People Diagnostix be liable for any loss, costs, expenses, or damages to the Subscriber in an amount exceeding the Subscription Fee actually paid to People Diagnostix by the Subscriber for the previous twelve (12) months.
20. Force Majeure
20.1 PEOPLE DIAGNOSTIX WILL NOT BE RESPONSIBLE TO YOU THE SUBSCRIBER FOR ANY FAILURE TO PERFORM OR FOR A DELAY IN PERFORMING AN OBLIGATION UNDER THIS AGREEMENT IN THE EVENT AND TO THE EXTENT THAT SUCH FAILURE OR DELAY IS CAUSED BY FORCE MAJEURE.
20.2 For the purposes of this Agreement, force majeure will mean any circumstance which:
20.2.1 Is beyond the reasonable control of the party giving notice of force majeure (affected party) and for which it is not responsible; and
20.2.2 It is not a circumstance which the affected party could by the exercise of the standard of care and skill which could reasonably be expected that party, have avoided.
20.3 Subject to the above force majeure includes but is not limited to including flood, fire, earthquake, war, tempest, hurricane, industrial action, government restrictions, computer virus, and malware resulting in Denial of Service Attacks (DoS and DDoS), ransomware or acts of God.
20.4 The affected party will give notice thereof to the other immediately upon the occurrence of any event of force majeure.
21. Notices and Demands
21.1 Any notice required or permitted to be given in terms of this Agreement will be valid and effective only if in Writing.
21.2 Any notice to a party:
21.2.1 Sent by pre-paid registered post (by airmail if appropriate) will be deemed to have been received on the second business day after posting (unless the contrary is proved); or
21.2.2 Notwithstanding anything to the contrary herein contained, a written notice of communication actually received by party will be an adequate written notice for communication to it notwithstanding that it was not sent or delivered in accordance with this Agreement.
21.2.3 In accordance with our Email Legal Notice (ADD URL) Subscribers agree and acknowledge that email sent to People Diagnostix is deemed received by People Diagnostix only when receipt is confirmed. Email and other communications from People Diagnostix will be deemed dispatched as and when reflected in the People Diagnostix logs.
22. Governing Law
22.1 This Agreement shall be governed by and interpreted in accordance with the laws of Western Australia.
23. Compliance with Laws
23.1 People Diagnostix, the Subscriber and Authorised Users will observe and comply with all applicable laws.
24.1 If any term is void, unenforceable, or illegal, the term may be severed from the Agreement and will not affect the validity of the rest of this Agreement, providing it does not change its purpose.
25.1 Any waiver which People Diagnostix may allow the Subscriber will not affect or substitute any of People Diagnostix’s rights against the Subscriber.
26.1 No Party may delegate its duties under this Agreement or assign its rights under this Agreement, in whole or in part. People Diagnostix’s may assign this Agreement to any successor or purchaser of its business or some of its assets.
27. No Partnership or Agency
27.1 Nothing in this Agreement will be construed as creating a partnership between the Parties and no Party will have any authority to incur any liability on behalf of the other or to pledge the credit of the other party.
28. Changes to this Agreement
28.1 People Diagnostix reserves the right to make changes to this Agreement if and when it becomes necessary as a result of changes to applicable law, or, as a result of changes to the Services. People Diagnostix will advise Subscribers of pending changes prior to implementing changes and Subscribers will be asked to agree to the changes.
29. Entire Agreement
29.1 This Agreement is the entire agreement between the Parties on the subject.
30.1 A word defined in this Agreement starts with a capital letter. All headings are inserted for reference purposes only and must not affect the interpretation of this Agreement. Whenever “including” or “include”, or “excluding” or “exclude”, together with specific examples or items follow a term, they will not limit its ambit. Terms other than those defined within the Agreement will be given their plain English meaning. References to any enactment will be deemed to include references to the enactment as re-enacted, amended, or extended. A reference to a person includes a natural and juristic person and a reference to a party includes the party’s successors or permitted assigns. Unless otherwise stated in the Agreement, when any number of days is prescribed in the Agreement the first day will be excluded and the last day included. The rule of construction that an agreement must be interpreted against the party responsible for its drafting or preparation does not apply.