Last Updated: 21 August 2024
1. Introduction
These General Terms apply to all services delivered by Edexia.
2. Interpretation
These General Terms and each Service Agreement incorporate the defined terms found in clause 42 of this document.
3. Service Agreements
(a) Unless otherwise agreed, a Service Agreement is formed when Edexia accepts a Service Order from you.
(b) A Service Agreement comprises:
- Any Special Terms;
- A Service Order;
- A Statement of Work (if applicable); and
- These General Terms.
(c) In case of inconsistency between documents in clause 3(b), the order of precedence of these documents shall apply.
4. Counterparts and Exchange
The Parties may enter into a Service Agreement by signing separate copies and exchanging them by post, in person, by fax, or email.
5. Charges and Payment
(a) You must pay all charges applicable to the services.
(b) Charges apply as specified in the Service Order or, where not specified, in accordance with the applicable rates schedule.
(c) Payments must be made by the due date on the invoice, without setoff or deduction.
(d) Overdue amounts will incur interest at the Default Rate, compounding monthly.
6. Billing Disputes
You may dispute a charge:
(a) Within 1 month after the date of the invoice; and
(b) In accordance with Edexia’s dispute process in clause 31.
7. Relationship
Edexia operates as an independent contractor, and nothing in these General Terms or any Service Agreement creates a partnership, joint venture, or agency relationship between the parties.
8. Entire Agreement
The documents that make up a Service Agreement in clause 3 constitute the entire agreement between the parties, superseding all previous agreements, understandings, commitments, representations, and warranties relating to that subject matter.
9. Variation
A Service Agreement may only be varied by written agreement or electronic acceptance by both parties, including notifications through the Edexia platform.
10. Assignment
(a) Neither party may assign or novate a Service Agreement without the prior written consent of the other party, which will not be unreasonably withheld.
(b) Edexia may assign or novate a Service Agreement without your prior written consent if it sells or restructures any part of its business or shares.
11. No Waiver
Failure or delay by either party in exercising any right under the Service Agreement does not constitute a waiver of that right.
12. Notices
(a) Edexia may send notices via electronic messaging.
(b) Any other notices required under the Service Agreement must be in writing and sent to the relevant party’s contact address.
13. Governing Law and Courts
These General Terms and any Service Agreement are governed by the laws of Victoria, Australia. The parties submit to the exclusive jurisdiction of the courts in Victoria.
14. Term of Service Agreements and Services
(a) A Service Agreement:
- Starts on its Service Commencement Date;
- Continues for the Contract Term, after which it automatically renews for successive 12-month terms unless terminated earlier in accordance with the Service Agreement.
(b) Upon renewal, the Service Agreement will be governed by the then-current terms as published on Edexia’s website.
(c) If a Service Order’s term ends before the Contract Term, the service will terminate automatically at the end of the Order Term unless otherwise agreed.
(d) If the Service Order includes Professional Services, those services will continue until completion.
15. Consents
You must promptly obtain any third-party consents necessary for Edexia to provide services, such as access to facilities for software installation.
16. Representatives
(a) Each party authorizes its representative to act on its behalf with respect to the Service Agreement, and the other party is entitled to rely on the representative’s actions as if they were taken by the party itself.
(b) A party is deemed to know anything that its representative knows.
(c) A party may replace its representative by notifying the other party.
17. Service Commencement
Edexia will commence delivery of services on or within a reasonable time after:
(a) The date specified in the Service Agreement; or
(b) The expiry of 14 days from the date of the Service Agreement, whichever is later.
18. Service Standards
(a) Edexia will provide the services with due care and skill, in accordance with the applicable Service Agreement and laws.
(b) While Edexia endeavors to avoid interruptions, it does not guarantee error-free services and is not liable for interruptions caused by off-net events.
(c) Edexia will use reasonable efforts to schedule maintenance at times that minimize disruption.
19. Service Suspensions
Edexia may suspend services in whole or part:
(a) If required to comply with the law;
(b) To protect people, property, or network integrity;
(c) If credentials are compromised;
(d) In case of emergencies;
(e) For scheduled maintenance (with at least 3 days’ notice);
(f) If you or any authorized user breaches Edexia’s Acceptable Use Policy;
(g) If you cease carrying on business;
(h) If you fail to provide security requested under clause 21 within 7 days;
(i) If you do not cure a default within 14 days of receiving notice;
(j) To investigate any potential breach of the Service Agreement; or
(k) With your prior consent.
20. Price Variations
Edexia may vary charges:
(a) Upon expiry of the current contract term with at least 90 days’ written notice;
(b) During the contract term if you request changes to the quantity or nature of the services.
21. Security
Edexia may require security, such as cash or a bank guarantee, if you experience an insolvency event, fail to pay an invoice by its due date, or following a credit review.
22. Other Obligations
22.1 You must:
(a) Comply with the terms of the Service Agreement;
(b) Ensure services are not used contrary to law or in a way that causes a nuisance;
(c) Comply with all applicable laws, including privacy laws;
(d) Provide all necessary information and cooperation to Edexia for the purposes of the Service Agreement;
(e) Follow Edexia’s reasonable directions;
(f) Maintain all permissions required for using the services;
(g) Comply with Edexia’s Acceptable Use Policy;
(h) Respond promptly to Edexia’s communications;
(i) Not solicit Edexia’s employees or contractors; and
(j) Ensure your personnel do not breach the Service Agreement.
22.2 Edexia must:
(a) Comply with the terms of the Service Agreement;
(b) Comply with all applicable laws, including privacy laws;
(c) Provide you with appropriate information and cooperation as needed;
(d) Maintain all permissions and licenses required for providing the services;
(e) Respond promptly to your communications; and
(f) Not solicit your employees or contractors.
23. Mutual Termination Rights
23.1 Neither party may terminate a Service Agreement:
(a) During its contract term; or
(b) Where the agreement relates solely to Professional Services, following the Service Commencement Date,
except under clause 23.3 or by mutual agreement in writing.
23.2 Either party may terminate a Service Agreement by providing at least 90 days’ notice prior to the expiry of the current contract term.
23.3 Either party may terminate a Service Agreement by written notice if:
(a) The other party is in default and fails to remedy the default within 14 days of receiving notice;
(b) The other party is subject to an insolvency event; or
(c) The parties cannot agree on a change request related to Professional Services after following the agreed process.
24. Early Termination – Edexia
Edexia may terminate a Service Agreement by notice if:
(a) It becomes unfeasible to continue providing the service (Edexia will provide services for the contract term and give at least 6 months’ notice of termination);
(b) Edexia is acquired by a third party (Edexia will provide services for the contract term and give at least 6 months’ notice of termination);
(c) Edexia is required to do so by law or an authority;
(d) You undergo a change of control without Edexia’s consent; or
(e) You request early termination, subject to an early termination charge.
25. Early Termination – You
You may terminate a Service Agreement by notice if:
(a) The service is subject to three or more critical incidents in a calendar month caused solely by Edexia (excluding scheduled maintenance).
26. GST
(a) Charges are exclusive of GST unless otherwise stated.
(b) Edexia may invoice, and you must pay, applicable GST in addition to the charges.
27. Confidentiality
Each party must keep the other’s confidential information private, except for disclosures:
(a) To its staff, contractors, and professional advisers who reasonably need to know it;
(b) Authorized by the Service Agreement; or
(c) Required by law.
The disclosing party must take reasonable steps to ensure that the information remains confidential.
28. Authorities
You authorize Edexia to:
(a) Disclose information about you as required by law;
(b) Handle personal information per
(b) Handle personal information per Edexia’s Privacy Policy and applicable privacy laws; and
(c) Take any reasonable actions on your behalf necessary to provide the services.
29. Indemnities
29.1 You agree to indemnify Edexia against: (a) Any loss suffered by Edexia arising from your negligent or wrongful acts, or material breach of the Service Agreement; and
(b) Any claim by you, your personnel, or a third party arising from your use of the services, including claims that the services infringe third-party IP rights, except to the extent the claim arises from Edexia’s negligence or breach of the Service Agreement.
29.2 Edexia agrees to indemnify you against: (a) Any claim against you that the services infringe the IP rights of a third party, except where the claim is caused by your actions or breach of the Service Agreement.
29.3 Limitations on indemnity: (a) Your indemnity does not apply if you fail to provide Edexia with timely notice of a claim, fail to give Edexia sole control of the defense and settlement, or fail to provide reasonable assistance.
30. Liability
30.1 Non-excludable rights under Australian Consumer Law (ACL):
(a) Nothing in these General Terms excludes or limits your rights as a consumer under the ACL or other applicable laws.
(b) To the extent permitted by law, any representation, warranty, guarantee, or condition not explicitly stated in the Service Agreement is excluded.
(c) If the ACL applies and permits, Edexia’s liability is limited to resupplying the services or covering the cost of resupply.
30.2 Limitation of liability:
(a) Except as provided in clause 25, your rights and remedies for failing to meet a service level target or breach are limited to service level credits as set out in the Edexia Service Level Agreement: https://www.edexia.ai/legal/service-level-agreement.
(b) TO THE EXTENT PERMITTED BY LAW, NEITHER PARTY WILL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR PUNITIVE DAMAGES, INCLUDING LOST PROFITS OR REVENUE, BUSINESS INTERRUPTION, OR DATA LOSS, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
(c) The total aggregate liability of either party for any claims arising from a Service Agreement is capped at the amount paid by you under the Service Agreement for the relevant services in the preceding 12 months. This limitation applies regardless of the theory of liability and does not affect your payment obligations.
30.3 A party’s liability under a Service Agreement will be reduced to the extent that the other party caused or contributed to the liability.
30.4 A party suffering a loss under a Service Agreement must take reasonable steps to avoid or minimize that loss.
31. Disputes
(a) Each party must appoint a senior officer to negotiate and resolve any dispute. (b) If negotiations fail within 14 days, the dispute may be referred to mediation before an independent mediator, with costs shared equally by the parties. (c) Despite a dispute, the parties must continue performing their obligations under the Service Agreement. (d) A party may seek urgent interlocutory relief from a court despite the dispute resolution process.
32. Force Majeure
Edexia is excused from its obligations under the Service Agreement to the extent that a force majeure event prevents or hinders service delivery.
33. Agents
Edexia may delegate its responsibilities to agents or subcontractors, but remains liable for their performance as if there were no delegation.
34. Reading Down
If any term of the Service Agreement is invalid, illegal, or unenforceable, it will be read down or severed to the extent necessary to make it enforceable. The remaining provisions will continue in full force and effect.
35. Commission, Rebates, and Out-of-Pocket Expenses
(a) Edexia may pay or receive commissions or rebates in connection with the Service Agreement. (b) You must pay all bank fees incurred in making payments to Edexia and any out-of-pocket expenses Edexia incurs in providing services, provided they exceed $500 and with your prior consent.
36. Obligations After Termination of Service Agreement
When a Service Agreement ends: (a) Edexia may invoice charges not previously invoiced. (b) You must pay all outstanding invoices by their due date. (c) You must return any Edexia property within 7 days. (d) Accrued rights and obligations survive, including clauses 5, 6, 13, 22.1(g)(i), 27, 28, 29, 31, 32, 36, 37, 40, and 41.
37. Policies
(a) You must comply with Edexia’s Acceptable Use Policy and any other lawful directions. (b) Edexia will provide support per the Edexia Support Policy applicable to your product. (c) Edexia may amend or introduce new policies with 14 days' notice, and amendments will be made visible on Edexia’s websites.
38. Security
(a) Edexia will implement security measures as set out in its Security Measures statement: https://www.edexia.ai/legal/security-measures. (b) You must maintain the security and confidentiality of usernames and passwords. (c) You acknowledge that internet connections carry inherent security risks, and it is your responsibility to implement appropriate measures to protect your data. (d) Edexia agrees to comply with applicable privacy laws and promptly notify you of any data breaches.
39. Data
39.1 You retain ownership of your data.
39.2 Edexia will handle your data per the Privacy Policy and applicable laws: https://www.edexia.ai/legal/privacy-policy.
39.3 Edexia may use de-identified, aggregate, and statistical information related to service performance, provided it does not identify you or your data.
39.4 Upon termination, Edexia will return your data and delete remaining copies unless required by law to retain them.
40. Intellectual Property
(a) All intellectual property (IP) rights in Edexia and its services are owned by Edexia or its licensors. You must not infringe or commercialize these rights. (b) You retain ownership of your data, but Edexia owns any customizations, modifications, enhancements, and derivative works related to the services. (c) Edexia owns all trademarks associated with its services. You may not use any trademark without prior written consent from the owner. (d) You grant Edexia a license to use feedback provided by you or your end users to improve the services.
41. Third-Party Services
(a) Edexia may use third-party services to deliver its platform and will ensure compliance with relevant privacy laws. (b) If you integrate third-party services, you are responsible for assessing their security and privacy measures. (c) Edexia may disclose your data to third-party service providers as necessary to deliver the services. These are detailed in the subprocesor list: https://www.edexia.ai/legal/subprocessor-list.
42. Dictionary
Acceptable Use Policy: Edexia’s policy outlining acceptable uses of the services, accessible at https://edexia.ai/legal/acceptable-use-policy/, as amended from time to time.
Administrator: An individual authorized to use a service as an administrator, presenter, or support staff, identified through a unique login.
Affiliate: Any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. "Control" refers to ownership of more than 50% of the voting interests of the subject entity.
Business Day: A day that is not a Saturday, Sunday, or public holiday observed in Victoria, Australia.
Business Hours: The hours between 9 AM and 5 PM AEST on a Business Day, adjusted for daylight savings.
Extended Business Hours: The hours between 8:30 AM and 6:00 PM AEST on a Business Day, adjusted for daylight savings.
Change of Control: In relation to a corporation, without Edexia’s prior written consent, it refers to:
Charges: Any charge or fee applicable to services (exclusive of any taxes or withholdings unless otherwise stated).
Claim: Any claim, demand, action, proceeding, or legal process (including setoff, cross-claim, or counterclaim).
Confidential Information: All written or oral information identified as confidential or reasonably understood as such, including contract terms, network designs, customer lists, and other non-public information.
Contact Address: The postal or business address, fax number, email address, or other identifier most recently provided by a party as its address for communications.
Contract Term: The period specified in the Service Order, starting from the Contract Start Date and ending on the Contract End Date.
Customer: The entity or person specified in a Service Agreement.
Data Breach: Any incident involving Your Data that results in:
Default: A breach of these Terms or a Service Agreement, including non-payment of an invoice, for which a Default notice has been issued.
Default Rate: A rate 2% higher than the penalty rate under the Penalty Interest Rate Act 1983 (Vic), as adjusted from time to time.
DPA: The Data Processing Agreement between you and Edexia, if applicable.
Early Termination: Termination of a Service Agreement before the end of any Contract Term or Order Term, except where you terminate under clause 23.3.
Early Termination Charge: An amount representing a genuine pre-estimate of the loss suffered by Edexia due to early termination, considering discounts, outstanding disbursements, implementation costs, and stranded costs.
Electronic Messaging: Communication via email, fax, SMS, or MMS.
End User: An individual, such as a student, parent, teacher, employee, consultant, or contractor, who is authorized by the Customer to use Edexia services and has a user identification and password.
Force Majeure: An event or circumstance beyond a party’s reasonable control, including war, riots, civil unrest, fire, flood, cyclone, typhoon, earthquake, lightning, explosion, strikes, energy shortages, pandemics, and government actions preventing performance under these terms.
General Terms: This document.
Insolvency Event: Occurrence of any of the following:
Invoice: A statement of charges that have accrued or are payable in advance.
IP Rights: All industrial and intellectual property rights, including patents, copyrights, circuit layout rights, designs, trademarks, and domain names, as well as any applications or rights to apply for registration of these rights.
Law: Laws applicable to Edexia’s provision of services in the jurisdiction where services are provided to the Customer.
Loss: Loss or damage suffered by a person arising out of a Service Agreement or any related supply, whether from contract, tort, breach of statutory duty, or otherwise, including obligations to indemnify or contribute to third-party losses.
Off-Net Events: Any event or circumstance occurring outside Edexia’s network or involving third-party infrastructure.
Order Term: The period from the Order Start Date to the Order End Date for a specific service as set out in the Service Order.
Party: A party to a Service Agreement.
People: Management, employees, contractors, and agents of a Party, and anyone using or accessing a service on the Customer’s account.
Personal Information: Any information or opinion about an identifiable individual, as defined in Edexia’s Privacy Policy.
Plan Schedule: Descriptions of service plans, included features, usage guides, and policies, accessible via Edexia’s websites.
Privacy Laws: Applicable privacy and data protection laws in the jurisdiction where services are provided.
Privacy Policy: Edexia’s Privacy Policy, accessible at https://www.edexia.ai/legal/privacy-policy, as updated from time to time.
Production Instance: The server where your hosted subscription service is installed and running as the live instance. Non-Production Instances are other installations, such as testing or staging environments.
Professional Services: The professional services specified in your Service Order.
Representative: A person authorized to represent a party.
Scheduled Maintenance: Planned maintenance, upgrades, or repairs to equipment, software, or networks used to deliver services, as part of Edexia’s maintenance program.
Service: Any service provided by Edexia to you, as detailed in a Service Agreement.
Service Agreement: An agreement formed under clause 3 of these General Terms.
Service Commencement Date: The date when Edexia makes a service available for use, or a later date specified in the Service Agreement.
Service Order: An Order Form, Quote, or Estimate accepted by Edexia, detailing the services to be provided.
Special Terms: Any special terms and conditions agreed upon in writing in a Service Order or Statement of Work.
Third-Party Services: Products and services provided by third parties that you elect to use in connection with Edexia services, including those purchased through Edexia.
Your Data: Any data, content, text, messages, communications, code, video, images, or other materials uploaded, submitted, or transmitted by you, your administrators, or end users through the service, including personal information.
You and Your: Refers to the Customer.
We, Us, and Our: Refers to Edexia Pty Ltd (ACN 676 224 892).
Websites: Edexia’s websites located at https://edexia.ai and https://grade.edexia.ai.
