This document is to be read in conjunction with the details of your Subscription. Together with the Subscription, the terms and conditions set out in this document apply to the provision of the Services by Wellio Pty Ltd (Agreement).

By accessing or using the Services or any of the content made available via the Services, the Customer agrees to comply with the obligations set out in this Agreement.

It is agreed that:

1. Definitions

Business Day means any day except a Saturday, Sunday, public holiday or bank holiday in Melbourne, Victoria.

Commencement Date means the date the Services are to commence as set out in the Subscription.

Customer, “you” and “your” refer to you, the purchaser of the Services identified in the Subscription.

Customer Data means data of any kind in whatever form (including text images, audio and video) contributed, linked to, or otherwise made available, through the Service by or from a User.

Fees means the fees payable for the Services as set out in your Subscription.

Initial Subscription means the initial subscription term set out in your Subscription.

Intellectual Property Rights means:

1. a. any patent, trade mark (whether registered and whether within or outside Australia), copyright, design or other design right (whether registered or unregistered) and any corresponding property or right under the laws of Australia or any other jurisdiction in the world (including any applications for registration of the foregoing rights);
2. b. any right under the laws of Australia or any other jurisdiction in the world to apply for the grant or registration of a patent, trademark, copyright, design, or any corresponding property right; and
3. c. any rights and the benefit of any obligation owed in respect of an invention, discovery, trade secret, know-how, concept, data, database, information, process, methodology, formula or confidential information.

Personal Information has the meaning given in the Privacy Act 1988 (Cth).

Services means the provision of access to Wellio’s interactive e-learning tools, curriculum and the provision of Wellio’s Professional Learning webinars and courses.

Wellio, “we”, “us”, or “our” refers to Wellio Pty Ltd.

Wellio Library means the content feature within the Wellio Platform where we publish lesson materials and other content as part of the Services.

Wellio IPR means all Intellectual Property Rights subsisting in the Wellio Platform, Wellio Library, any Wellio website, and Wellio Professional Learning and includes without limitation all Intellectual Property Rights (including software source code and any information stored in the Wellio Library and Wellio Toolset), exclusive of any Customer Data or User Content.

Wellio Platform means our cloud-based, online, interactive e-learning tool and curriculum builder.

Wellio Professional Learning means our webinars and courses for teachers.

Wellio Toolset means the elements and functionality used to deliver the Services including, without limitation: websites, graphics, layout, text, images, audio and/or video, designs, logos, domain names, trade names and marks, software, source code, “look and feel”, and, the manner in which these elements are arranged.

Subscription means the details of your purchase of the Service.

Term means the term of the Services as set out in the Subscription.

User means a teacher engaged by your training or educational organisation, a student or other person authorised to use the Services.

User Account means a user name and logon for a User to access the Service.

2. Terms

Wellio reserves the right to vary any of the Terms, or any other policy or guideline, at any time and in its sole discretion and without notice to the Customer. Unless otherwise specified in writing by Wellio, any changes or modifications to the Terms will be effective immediately upon publication on the Wellio website.

3. Licence and Access

3.1 Licence Subject to the Customer paying the Fee for Services, Wellio will provide access to the Services to the Customer and its Users. During the Term, Wellio grants to the Customer a non-exclusive, non-transferable, and revocable licence (Licence) to access and use the Services for the purposes of preparing and delivering training and education activities, developing User Content and sharing Customer Data and User Content in accordance with the Subscription. All rights not expressly granted to you are reserved by us.

3.2 Access and Security The Customer must not disclose any user name or password details to any other person or store it in a manner that would reasonably allow another person or entity to obtain access to it.

3.3 Provision of information The Customer must supply Wellio with complete, accurate and up to date information when taking out a Subscription and this information must be updated by the Customer as required to ensure it remains accurate. You are not required to provide an accurate first name and last name on the registration of a Wellio account.

3.4 Limited use Unless Wellio agrees otherwise in writing, the Customer is provided with access to the Services only for its educational or internal business use and otherwise in accordance with the Licence granted in clause 3.1. The Customer must not and it must ensure that the Users do not, use the Services for any other purpose without the prior written consent of Wellio.

3.5 Ongoing development You acknowledge that we regularly update the Service, releasing new features or improving existing ones. We will consult with you if we reasonably believe such changes could adversely affect your use of the Wellio Platform or your use of the Services.

3.6 Expiry or termination Upon expiry or termination of the Customer’s Subscription, the Licence will be revoked and, from that date, the Customer must immediately cease and must ensure the Users cease accessing and otherwise using the online Services.

4. Payment and Invoicing

4.1 Payment of Fees

a. The Customer must pay Wellio the Fees and any other amounts payable under the Agreement in the manner and on the dates specified in the Subscription. Unless otherwise agreed by the parties in writing, Fees are payable annually in advance of the Services.

b. Invoices issued under clause 8.1(c) are due within 30 days of the date of invoice.

c. Timely payment of each invoice is an essential term of this Agreement.

d. Where applicable, the Customer must pay, in addition to the Fees, any GST levied or imposed upon Wellio as a result of the provision of the Services. Unless otherwise expressly stated, all prices or other sums payable or fees to be provided under or in accordance with this Agreement are exclusive of GST.

e. Unless the Customer has agreed a multi-year Subscription which fixes Fees for that Initial Subscription term, Wellio may increase Fees at renewal under clause 13.1. Wellio will notify the Customer of any applicable Fee increase in advance of the renewal Term commencing.

4.2 Overdue amounts If any amount payable to Wellio under this Agreement has not been paid by the Customer by the due date for payment, Wellio may:

1. a. charge interest on the amount outstanding at the rate of 4% above the overdraft index rate charged by the Commonwealth Bank (or such other bank as Wellio may nominate) from time to time calculated per annum from the due date for payment until such time as full payment of the outstanding amount is made by the Customer (which interest must be paid by the Customer on demand by Wellio);
2. b. suspend performance of this Subscription (in part or in full) until the amount outstanding is paid in full; or
3. c. terminate the Subscription.

4.3 Additional rights The exercise by Wellio of any of its rights under clause 4.2 does not affect:

1. a. the Customer’s obligation to pay any money due and payable; or
2. b. any other rights or remedies Wellio may have in relation to any failure by the Customer to pay an amount due, under this Subscription or any other agreement between Wellio and the Customer.

5. Refunds for Services and Subscriptions

All Services and Subscriptions are sold on a non-refundable basis.

6. Availability, Outages and Interruptions

1. a. We make every effort to ensure the Service is available 24 hours a day, 7 days a week. Wellio may undertake maintenance activities which are in its reasonable opinion necessary to properly provide, or to facilitate improvements to, or maintenance of, the Services.
2. b. Wellio will use reasonable endeavours to minimise the need for maintenance work (Scheduled Maintenance) that may cause disruption to Wellio’s ability to provide the Services to the Customer. Wellio will use reasonable endeavours to minimise any disruption to the Customer caused by the Scheduled Maintenance and where reasonably able to do so will provide details of the nature of the Scheduled Maintenance.
3. c. Notwithstanding this clause 4 or otherwise, Wellio reserves the right to undertake emergency maintenance in respect of the Wellio Platform or otherwise without notification to the Customer. Where reasonably able to do so, Wellio will notify the Customer prior to undertaking such emergency maintenance.
4. d. Wellio reserves the right to monitor access and use of the Service from time to time including to ensure compliance with the Agreement and to comply with any usage restrictions.

7. Intellectual Property Rights

1. a. The Customer acknowledges and agrees that Wellio owns and holds the Wellio IPR and at no time during the term of this Agreement or after its expiry or termination, will the Wellio IPR transfer, assign or otherwise vest in the Customer.
2. b. During the Term of this Agreement and at any time after the Agreement expires or is terminated:
   1. i. the Customer must not use challenge, interfere with or otherwise impede Wellio’s ownership and use of the Wellio IPR;
   2. ii. the Customer must not use or attempt to use, license or attempt to license or otherwise deal with, transfer, assign, or grant a licence in relation to, the Wellio IPR;
   3. iii. the Customer must not engage in the infringement of the Wellio IPR by hacking, reverse engineering or otherwise duplicating the Wellio IPR;
   4. iv. with the exception of content development activities allowable as part of the Service, the Customer must not otherwise modify or make derivative works based upon the Service or the Wellio Toolset;
   5. v. the Customer must not “frame” or “mirror” any Wellio Toolset on any other server or wireless or Internet-based device;
3. c. All trademarks displayed on the Wellio Platform and forming any part of the Services are trademarks of their respective owners. Nothing contained in this Agreement should be construed as granting any licence or right of use to any trademark displayed on the Wellio Platform without the express written permission of the relevant owner.
4. d. The Customer will immediately notify Wellio in writing of any actual, suspected or anticipated infringement Wellio’s Intellectual Property Rights or breach of this clause.
5. e. You agree that your provision of feedback regarding the Service does not give you any Intellectual Property Rights or any other right, title, or interest in or to the Wellio IPR. We have no obligation to incorporate feedback into any service, and you have no obligation to provide feedback.

8. Users

8.1 Maximum Users

1. a. You acknowledge that the Fee is set in accordance with the maximum number of Users permitted to access the Services under your Subscription.
2. b. We will monitor the number of Users to whom you grant User Accounts. You must ensure that each User Account is used only by one User and not shared with any other person.
3. c. In the event that you obtain User Accounts for more than the maximum number of Users permitted under your Subscription, we reserve the right from time to time to issue an invoice for those additional User Accounts on the same terms as the existing User Accounts.

8.2 Student Number Variation

We understand that enrolment numbers at school change, especially at the start of the school year.

To accommodate, for our services we’re happy to make reasonable adjustments to the number of student Users you purchase (within 10% of your total student licences), up or down, within the first 2 months of the school year.

8.3 User Account Usage

A User is deemed to have accessed or used the Services when logging in and answering any question, or accessing any of Wellio’s course materials provided in the Service.

8.4 User Account Obligations

The Customer must ensure that:

1. a. each User complies with the applicable Customer obligations under this Agreement; and
2. b. it implements a password policy in respect of access to the Services which reasonably ensures that User passwords meet or exceed industry standard password strength requirements.

9. Customer obligations and warranties

a. At its own cost, the Customer must and where applicable must procure that its Users:

1. i. provide their own facilities (including computers, software and telecommunications facilities) necessary for accessing and utilising the Services;
2. ii. use the Services for their own business purposes in accordance with the scope of the Licence in clause 2.1 and in relation to the Customer to provide educational services to its students and otherwise not for the benefit of any third party, unless agreed otherwise by Wellio;
3. iii. not upload, either using the Services or otherwise, any content that contains any computer viruses, worms, trojan horses, spyware or any other potentially damaging technology of software;
4. iv. not redistribute, copy, publish, sell, alter, modify, tamper with, reverse engineer, decompile, or disassemble the Services, or any content generated by Wellio unless otherwise agreed by Wellio;
5. v. not use any materials or information created by or provided in connection with, or use the Services for any purpose other than for its own use in accordance with the scope of Licence in clause 3.1;
6. vi. not use the Service to transmit unsolicited advertising or spam to other Users;
7. vii. not use the Service to distribute content to any person or entity that is not a User unless otherwise allowable as part of the Service;
8. vii. not use the Service to store or distribute illegal, harmful or malicious material or link to websites containing such material. You must not use the Service in a way that breaches any law or another person’s Intellectual Property Rights;
9. ix. not use the Service to bully, intimidate or harass any User or any other third party. You agree not to create or upload Customer Data or User Content that could be considered hate speech or that incites violence;
10. x. not to attempt to bypass security controls or otherwise gain unauthorised access to resources within the Service;
11. xi. not to attempt to knowingly disrupt the proper operation of the Service in any way;
12. xii. have appropriate policies and procedures in place relating to unauthorised access or misuse of the Services; and
13. xii. maintain the confidentiality of any login name and password allocated to it or the Users and not to disclose them to any third party.

b. The Customer represents and warrants to Wellio that:

1. i. it has and will during the Term have the legal right and authority to perform its obligations as contemplated under this Agreement;
2. ii. it will use the Services only for lawful purposes and in accordance with this Agreement; and
3. iii. to the best of its knowledge as at the date of this Agreement, any software, data, equipment or other materials to be provided by the Customer to Wellio or employed by the Customer in its use of or receipt of the Services does not infringe any Intellectual Property Rights of any third party, and is not obscene or defamatory of any person and does not violate any applicable laws.

10. Customer Data and Privacy

a. The Customer is responsible for ensuring that all the Customer Data and other materials made available to Wellio, including all alterations to the Customer Data and such other materials provided by the Customer, are accurate and complete and complies with all applicable laws.

b. The Customer warrants to Wellio that the provision of the Customer Data to Wellio and the use of it by Wellio in accordance with this Agreement complies with all applicable laws, including but not limited to the Privacy Act 1988 (Cth). The terms of Wellio’s privacy policy are incorporated and form part of the Agreement. You can read Wellio’s privacy policy at wellioeducation.com for further details.

c. The Customer is responsible for obtaining any necessary consents from Users to allow for the use, disclosure and transfer of Personal Information in the course of a User accessing the Services.

d. The Customer represents and warrants that it has the necessary rights, licences, clearances or consents needed to submit the Customer Data to Wellio.

e. The Customer grants a non-exclusive licence to Wellio for the Term to copy, store, transmit, display, access and use Customer Data to the extent reasonably necessary to provide and maintain the Service for you.

f. Without limiting any other term of this Agreement:

1. i. Wellio agrees to comply with all applicable laws, including but not limited to the Privacy Act 1988 (Cth) in handling, using and disclosing the Customer Data;
2. ii. Wellio must maintain appropriate data security systems, practices and policies and must take all reasonable steps necessary to ensure that all Personal Information held in connection with this Agreement is secure and stored or recorded accurately and is protected against:
   1. a. corruption, interference and loss; and
   2. b. unauthorised access, use, modification, processing, disclosure or other misuse, and to ensure that only authorised Wellio personnel have access to the information.
3. iii. The Customer may request Wellio to remove or destroy Customer Data held by Wellio at any time during or subsequent to this Agreement, provided that Wellio may charge a fee for this service on a time and materials basis. Wellio retains discretion as to the removal of data no less than 14 days after the expiry of the Agreement.
4. iv. You acknowledge that even when you request Customer Data is deleted, and we remove it from the Service, it may persist in backups for a reasonable period of time.

g. Any and all personal data pertaining to Users and Subscribers shall be processed in accordance with Wellio's Privacy Policy. By agreeing to these General Terms, Subscribers agree to Wellio's Privacy Policy.

h. Subscribers who are located in territories which are protected by Data Protection Laws (as defined in the Data Processing Agreement) will be subject to and must comply with Wellio's Data Processing Agreement, which is incorporated into and forms part of this Agreement. The Data Processing Agreement sets out Wellio's obligations with respect to data protection and security when processing personal data on behalf of a Subscriber in connection with the Services.

11. Consent

The Customer acknowledges that Wellio and its third party service providers may communicate with the Customer for the limited purpose of:

1. a. the Customer’s access and use of the Services;
2. b. providing the Customer with news and information about the Services;
3. c. responding to any specific request the Customer makes of Wellio;
4. d. administering and managing the Services, as well as performing administrative and operational tasks (including risk management, systems development and testing, and market or customer research);
5. e. notifying the Customer of any changes to, enhancements of, Scheduled Maintenance or outages that may affect the Services;
6. f. providing the Customer with the opportunity to ‘opt-in’ to receiving promotional material from time to time from Wellio or its services providers; and
7. g. providing the Customer with the opportunity to ‘opt-in’ and provide its consent to participate in enhancements to or new features of the Services, through which Wellio may use information that is posted to or uploaded by the Customer for the purposes of enhancing the Customer’s use of the Services.

12. Limitation of liability and indemnity

a. If Wellio’s performance of its obligations under this Agreement is for any reason affected or delayed:

1. i. by the failure of the Customer to comply with its obligations under this Agreement;
2. ii. due to the acts or omissions of the Customer or any User;
3. iii. by any factors beyond Wellio’s reasonable control including Force Majeure; or
4. iv. due to incorrect access or use of the Services by Users or the Customer,

b. then Wellio’s obligations shall be reduced to the extent such events impact the access or use of the Services, and the time for the performance of Wellio’s obligations under this Agreement shall be extended by a reasonable period having regard to such failures, acts or omissions.

c. The Customer agrees that:

1. i. Wellio makes no representation or warranty regarding the accuracy or completeness of any data or information contained in the Services (Information);
2. ii. the Information does not purport to be a complete database of all information in Wellio’s possession or control;
3. iii. Wellio will not be liable to the Customer for any loss, damage, cost or expense (direct or indirect) howsoever arising from reliance upon or use by the Customer of any Information provided, or any failure of Wellio to provide complete or accurate Information;
4. iv. Wellio will not be liable to the Customer for any loss or corruption of the Customer Data for any reason including our negligence; and the use of Customer Data by third parties when shared using the Library.

d. Neither party is liable to the other party for any indirect, incidental, special, exemplary or consequential loss or damage, loss of profits or anticipated profits, loss of revenue, economic loss, loss of business opportunity, damage to goodwill, loss of data, deletion or corruption of electronically or digitally stored information or loss or damage resulting from wasted management time irrespective of whether:

1. i. the loss or damage is caused by or relates to breach of contract, statute, tort (including negligence) or otherwise;
2. ii. the possibility of such loss or damage was foreseeable; or
3. iii. Wellio or any other person was previously notified of the possibility of the loss or damage.

e. Each party’s total maximum aggregate financial liability to the other party under or in connection with this Agreement or any other agreement between the parties, whether such claim arises in contract or in tort or otherwise, shall not exceed the amount of the total Fees paid in the 12 month period prior to the cause of action.

f. The financial cap in clause 12(d) does not apply to:

1. i. breaches of clauses 7 or 10;
2. ii. fraud, wilful misconduct or negligence by the first party, its employees, contractors, suppliers, agents, subcontractors or service providers; or
3. iii. the extent that liability cannot be limited by law.

g. Subject to this clause 12, reconstruction of data lost or damaged due to Wellio’s direct acts or omissions in the course of supplying Services will be at Wellio’s cost provided that Wellio’s sole liability to the extent permitted by law will be to restore that data from the most recent backup copy.

13. Term and termination

13.1 Term and renewal

a. This Agreement commences on the Commencement Date and will continue for the Initial Subscription unless terminated earlier in accordance with this clause 13. Subscriptions are based on the school calendar year and typically run from 1 January through to 31 December.

b. At the end of the Initial Subscription, and upon each anniversary of the expiry of the Initial Subscription, the Term of this Agreement will be extended by a further term of 12 months, unless the Customer provides 60 days’ prior written notice that it does not intend that the Term of the Agreement be renewed. For example if your Initial Subscription runs from 1 January 2023 and ends on 31 December 2023 and you do not wish to renew for a further 12 months, you will need to let us know in writing on or before 1 November 2023. We will also email you to remind you prior to this date, giving you the opportunity to end your subscription. Otherwise the Subscription will automatically renew for a further 12 month period from 1 January 2023. If you are happy for the Subscription to renew then you do not need to do anything. We will be in touch with further details and you will continue to have the benefit of the Services in the new year for a further 12 months.

13.2 Termination

a. Either party may terminate this Agreement immediately on written notice to the other party if:

1. i. the other party fails to comply with a material term of this Agreement and does not remedy that default or breach within 7 days after receiving written notice to do so; or
2. ii. the other party fails to comply with a material term of this Agreement which is not capable of being remedied.

b. Wellio may terminate this Agreement or suspend the Customer’s access to the Services immediately, by written notice to the Customer, if the Customer:

1. i. is in breach of any obligations under this Agreement; or
2. ii. fails to pay Wellio any amount that is due and payable under this Agreement within 7 days of written notice to the Customer demanding payment.

c. In addition to its rights under clause 13.1 and 13.2, the Customer may terminate the Agreement in writing without fault within the first 30 days from when the Agreement is signed.

13.3 Effect of expiry or termination

a. Upon expiry or termination of this Agreement:

1. i. Wellio will immediately cease the provision of the Services;
2. ii. Wellio will issue to the Customer a final tax invoice for all Fees due. Wellio will not refund any Fees to the Customer for any Services provided up to the date of termination;
3. iii. each party must pay to the other party all amounts owed by it in connection with this Agreement, including under any indemnities; and
4. iv. the Licence will be immediately revoked in accordance with clause 3.6.

b. Termination of this Agreement will not affect the obligations, rights or remedies of either party under this Agreement which have accrued at the date of termination (including without limitation any obligation of the Customer to pay the Fees in respect of the period prior to the date of termination).

13.4 Data Preservation

Unless required by applicable law we will not delete any Customer Data during any period of restricted access to, or suspension of, the Service.

14. Force Majeure

a. Neither party shall be liable for any delay or failure to perform its obligations under this Agreement to the extent that such delay or failure is due to Force Majeure.

b. Any party who is, by reason of Force Majeure, unable to perform any obligation or condition required by this Agreement to be performed shall notify the other party as soon as possible, with the notice to contain details of the circumstances giving rise to the event of Force Majeure.

15. Miscellaneous

15.1 Notices Any notice, communication, consent or other document authorised or required to be given or served under this Agreement:

1. a. must be in writing addressed to the address or electronic address of the recipient shown in the Subscription (or to the address or electronic address last notified by the recipient to the sender); and
2. b. will be taken to have been duly given or made:
   1. i. in the case of delivery in person or by post, when delivered at the correct address;
   2. ii. in the case of delivery by email, as soon as the sender’s information system sends the email to the recipient’s email box provided that the sender does not receive a message sent by the recipient’s information system advising the sender that the recipient has not received the email,

c. but if delivery or receipt is later than 5.00pm (local time) on a day on which business is generally carried on in the place to which the communication is sent, it will be taken to have been duly given or made at the commencement of business on the next day on which business is generally carried on in the place.

15.2 Entire Agreement This Agreement contains the entire agreement of the parties with respect to its subject matter. It sets out the only conduct relied on by the parties and supersedes all earlier conduct by the parties with respect to its subject matter.

15.3 Assignment

1. a. The Customer is not entitled to assign or otherwise deal with any of its rights and obligations under this Agreement, without the prior written consent of Wellio.
2. b. Wellio may assign or otherwise deal with any of its rights and obligations under this Agreement, without the prior written consent of the Customer.

15.4 Waiver No right under this Agreement shall be deemed to be waived except by notice in writing signed by each party. A waiver made by a party will not prejudice its rights in respect of any subsequent breach of the Agreement by the other party.

15.5 Further Assurances Each party must do all things necessary to give full effect to this Agreement and the transactions contemplated by this Agreement.

15.6 Severability If any provision of this Agreement is held invalid, unenforceable or illegal for any reason, the Agreement shall remain otherwise in full force apart from such provisions which shall deemed deleted.

15.7 Survival Clauses 3, 4, 7, 9, 10, 12, 13.3, 14, this clause 15 and any other clauses that by their nature are intended to survive expiry or termination of this Agreement (including any clauses which are necessary for the interpretation of those clauses), survive expiry or termination of this Agreement.

15.8 Governing Law This Agreement is governed by the laws of Victoria. The parties submit to the non-exclusive jurisdiction of the courts exercising jurisdiction there, and agree that they will not object to the venue or claim that the relevant action or proceedings have been brought in an inconvenient forum.