Academic Group Pty Ltd (ACN 151 087 286) trading as Academic Associates (Academic Associates) and the School agree to the following terms and conditions upon which Academic Associates agrees to license the use of Exam Papers for use only at the School. These terms and condition must be read in combination with the Definitions and Interpretations at Clause 14:
Academic Associates grants to the School a revocable, non-transferable, non-exclusive licence to copy, reproduce, use or otherwise communicate the Exam Papers for non-commercial, educational uses only and may be used only at the School.
2. DURATION OF AGREEMENT
The Agreement commences on the Delivery Date will continue for the Term of the Agreement, or until terminated by either party in accordance with this Agreement.
3. SCOPE OF THE LICENCE
3.1 Use Only at the School Site Prior to the Release Date
(a) The Exam Papers must not be distributed (whether in hard copy or electronic form) by the School to any unauthorised third parties including individuals, schools or other educational institutions.
(b) The School must only use the Exam Papers in accordance with the terms of this Agreement. The School must ensure that only staff, students and other authorised persons are given access to the Exam Papers at the Site, and that the persons who have access do not copy, reproduce, use or otherwise communicate the Exam Papers for use outside the Site until after the Release Date.
(c) The Exam Papers may be given to students to take home only after the Release Date.
3.2 Reproduction and Alteration
(a) The School must only copy or reproduce the Exam Papers in numbers reasonably necessary to administer the Exam Papers in an exam and following the exam to study and review the Exam Papers, provided this occurs for non-commercial educational purposes at the Site.
(b) The School may alter or modify the Exam Papers, provided the School informs in writing of such modifications or alterations to Academic Associates. The School must not make modifications or alterations that are likely to adversely affect the quality of the Exam Papers as teaching materials. In the event the School alters or modifies the Exam Papers, the School assumes all risk and liability in relation to the altered or modified Exam Papers, and hereby releases Academic Associates absolutely in relation to any claim or potential claim in relation to the altered or modified Exam Papers.
(c) Copyright and all other intellectual property rights in any alteration or modifications shall be held exclusively by Academic Associates, and the School irrevocably assigns all copyright and other intellectual property rights in further alterations and modifications of the Exam Papers to Academic Associates.
(d) The School must ensure that Academic Associates copyright notice remains on the Exam Paper regardless of any modifications or alterations made to the Exam Paper.
(e) The School acknowledges that Academic Associates may supply the Exam Papers to third parties (including other schools) on the same or similar terms. The School further acknowledges that these third parties may have access to or use the same Exam Papers as supplied to the School, including prior to the supply by Academic Associates of the Exam Papers to the School.
3.3 Unauthorised use
The School acknowledges that it is liable for any unauthorised use, alteration, modification, reproduction, publication, disclosure or transfer of the Exam Papers in breach of this Agreement by members of staff, students and other related persons, and that such a breach entitles Academic Associates to institute any proceedings as may be appropriate, including for urgent injunctive relief, against the School. The School acknowledges and agrees that in additions to all its other rights and remedies under this agreement, Academic Associates may refuse to supply the School with Exam Papers if Academic Associates believes there has been any unauthorised use by the School or any member of staff, students and other related persons.
(a) Academic Associates will make the Exam Papers available for download by the School on the Delivery Date.
(b) The Exam Papers will be available to be downloaded by the School up until the Release Date, after which the Exam Papers will no longer be available online for download by the School.
5. COPYRIGHT, NOTICES AND WARNINGS
5.1 Acknowledgment of Copyright
The School acknowledges and agrees that all rights, title and interest in the Copyrights in all the Exam Papers is held exclusively by Academic Associates.
Every page of each Exam Paper bears a notice of Academic Associates\\\' ownership of copyright. The School must ensure that the copyright notice on each Exam Paper is reproduced when Exam Papers are copied (in whole or in part), and that it is not altered in any way.
5.3 Moral Rights
The School must ensure that use of the Exam Papers by its staff, students and other related persons does not infringe the moral rights of the authors of the Exam Papers.
6.1 School responsible
The School is solely responsible for the use, supervision, management, control and security of the Exam Papers.
The School must ensure that the Exam Papers are protected at all times from access, use, misuse, damage or destruction by any person not authorised by Academic Associates for that purpose. In particular, the School must ensure that:
(a) Only authorised teaching staff working in the School are permitted to order the Exam Papers, and all relevant staff members are aware of their obligations under this Agreement.
(b) All orders for Exam Papers must be placed on Academic Associates online ordering system or in writing to Academic Associates. Any individual ordering Exam Papers warrants and represents that he or she is authorised by the School to enter into an agreement with Academic Associates on behalf of the School for the supply of the Exam Papers.
(c) Once the Exam Papers are Delivered by Academic Associates to the School, the School must ensure that the Exam Papers (whether in hard copy or electronic form) are stored and used securely on Site from the Delivery Date until the Release Date. This includes but is not limited to the School ensuring that:
(i) prior to the Release Date, any hard copy Exam Papers and electronic storage devices containing the Exam Papers are locked away in a secure safe or otherwise placed in secure storage when not being used;
(ii) prior to the Release Date, any Exam Papers in electronic form can only be accessed by teaching staff (and supervisors) who are responsible for administering exams to which the Exam Papers relate; and
(iii) after students sit the exam and prior to the Release Date, students may only review an Exam Paper in a classroom on Site under strict supervision of teaching staff.
(d) The School must ensure that students do not copy, reproduce, use or otherwise communicate the Exam Papers outside the Site until the applicable Release Date. Exam Papers may only be released by the School to students to take home from the Release Date.
(a) The School will maintain accurate records of use, copying, modification, alteration and disclosure of the Exam Papers, and will provide copies of all or part thereof to Academic Associates upon request.
(b) Academic Associates may inspect the records or any part of them at any time during normal business hours upon giving reasonable notice.
Risk of loss or damage to the Exam Papers passes to the School on delivery of the Exam Papers.
8.1 LimitationAcademic Associates makes no warranty that the Exam Papers are correct in every respect.
8.2 ReplacementIf the Exam Papers are found to be incorrect in any material respect and the School has given written notice of the material defect to Academic Associates within fourteen (14) days after the Delivery Date, then Academic Associates may, at its discretion, either:
(a) use its best endeavours to modify or replace the Exam Papers, at its own expense; or
(b) refund to the School any payments received in relation to the Exam Papers which contain the material defect.
9. LIABILITY OF ACADEMIC ASSOCIATES
To the extent permitted by law and any Act of Parliament, and except as expressly provided to the contrary in this Agreement:
(a) all terms, conditions, warranties, undertakings, inducements or representations whether express, implied, statutory or otherwise relating in any way to the Exam Papers or to this Agreement are excluded; and
(b) Academic Associates is not under any liability to the School in respect of any loss or damage, including consequential loss or damage, however caused, which may be suffered or incurred or which may arise directly or indirectly in respect of the Exam Papers, or the failure or omission on the part of Academic Associates to comply with its obligations under this Agreement.
9.2 Terms implied by statute
(a) Where any Act of Parliament implies in this Agreement any term, condition or warranty and that Act avoids or prohibits provisions in a contract excluding or modifying the application of or exercise of, or liability under the term, condition or warranty, that term, condition or warranty will be deemed to be included in this Agreement.
(b) The liability of Academic Associates for any breach of the term condition or warranty will be limited to any one or more of the following, at the option of Academic Associates:
(i) if the breach relates to goods:
(A) the replacement of the goods or the supply of equivalent goods;
(B) the repair of such goods;
(C) the payment of the cost of replacing the goods or of acquiring equivalent goods; or
(D) the payment of the cost of having the goods repaired; and
(ii) if the breach relates to services:
(A) the supplying of the services again; or
(B) the payment of the cost of having the services supplied again.
9.3 School warrantyThe School warrants that it has not relied on any representation made by Academic Associates which has not been stated expressly in this Agreement, or on any descriptions or illustrations or specifications contained in any document including any catalogues or publicity material produced by Academic Associates.
10. FORCE MAJEURE
10.1 Failure or delayAcademic Associates will not be liable for any delay or failure to perform its obligations if the failure or delay is due to Force Majeure.
10.2 NoticeAcademic Associates will notify the School of any anticipated delay due to Force Majeure as soon as is reasonably practicable, at which time the obligations of Academic Associates under this Agreement will be suspended for the period of the delay so caused.
11.1 Breach by SchoolWithout limiting the generality of any other clause in this Agreement, Academic Associates may terminate this Agreement immediately by notice in writing if:
(a) any payment due from the School to Academic Associates under this Agreement remains unpaid for thirty (30) days; or
(b) the School breaches any clause of this Agreement and that breach is not remedied within fourteen (14) days of written notice to do so by Academic Associates.
11.2 Termination by Academic Associates other than for breachNotwithstanding the provisions in clause 11.1 and subject to any applicable laws, Academic Associates may terminate this Agreement immediately on notice in writing to the School if:
(a) the School becomes, threatens or resolves to become or is in jeopardy of becoming subject to any form of administration or insolvency administration; or
(b) the School ceases or threatens to cease operating in the normal manner.
11.3 Additional rights of Academic Associates
If notice is given to the School under clauses 11.1 or 11.2, and in addition to terminating the Agreement, Academic Associates may:
(a) repossess any copies of the Exam Papers in the possession, custody or control of the School;
(b) retain any money paid;
(c) be regarded as discharged from any further obligations under this Agreement; and
(d) pursue any additional or alternative remedies provided by law.
11.4 Certification of return of Exam Papers and Copies
On termination of this Agreement, the School will immediately on request provide Academic Associates with written certification that the following have been returned to Academic Associates:
(a) the Exam Papers;
(b) all copies of the Exam Papers;
(c) all modifications or alterations made to the Exam Papers,and, without limiting the generality of the foregoing, any documents relating to any of the above.
12.1 AssignmentThe benefit of this Agreement will not be dealt with in any way by a party, whether by assignment, sub-licensing, or otherwise, without the prior written consent of the other party.
12.2 WaiverNo right under this Agreement will be deemed to be waived except by notice in writing signed by each party. A waiver by a party will not prejudice its rights in respect of any subsequent breach of this Agreement.
12.3 Entire Agreement
This Agreement constitutes the entire agreement between the parties in respect of the Exam Papers. Any prior arrangements, agreements, representations or undertakings are superseded. No modification or alteration of any clause of this Agreement will be valid except in writing signed by each party.
(a) Each party acknowledges that the covenants, obligations and restrictions contained in this Agreement are reasonable, and each and every one of the covenants, obligations and restrictions in whole or part are deemed to be severable and independent.
(b) Any provision of this Agreement which is determined to be unreasonable will be ineffective to the extent only of that unreasonableness without invalidating the remaining provisions.
12.5 Governing Law and Jurisdiction
This Agreement will be governed by, construed and taken into effect in accordance with the laws of Western Australia, and the parties irrevocably and unconditionally submit to the jurisdiction of the Courts of Western Australia and Courts entitled to hear appeals therefrom.
(a) Any notice, approval, consent or other communication required by this Agreement will be in writing, and be delivered personally or given by prepaid registered post or email to a party at the address of the party indicated in this Agreement or such other address as the party may from time to time notify to the other party.
(b) Proof of posting by prepaid registered post or email will be, in the case of a letter, proof of receipt on the third day after posting; in the case of email, on the day immediately following receipt by the sender of a read receipt of the addressee.
Clauses 3.2(c), 1, 9, 12 and 13 survive the expiration or termination of this Agreement
12.8 Rights of Academic Associates
Any express statement of a right of Academic Associates under this Agreement is without prejudice to any other right of Academic Associates expressly stated in this Agreement or arising at law.
13. DEFINITIONS AND INTERPRETATION
In this Agreement:Academic Associates means Academic Group Pty Ltd (ACN 151 087 286) trading as Academic Associates.Copyright means all copyrights arising under the Copyright Act 1968 (Cth) and equivalent legislation in any other relevant jurisdiction.Delivery means Academic Associates or its employees or agents making the Exam Papers available for download electronically by the School at the Site.Delivery Date means the date an Exam Paper is downloaded by the School.Exam Papers means exam papers in various subjects produced by Academic Associates for students undertaking Year 11 and 12 courses in Western Australia which are subject to the security and release controls set out in this Agreement, and each paper includes all questions, solutions and marking keys.Force Majeure means any act, omission or circumstance over which Academic Associates could not reasonably have exercised control.Licence means the licence granted by Academic Associates to the School under this Agreement.Release Date means the date upon which an Exam Paper can be released to students of the School to take home, as specified by Academic Associates online.School means any educational institution that purchases Exam Paper(s) from Academic Associates.Site means the site or sites where a School provides educational services to students.Term means one (1) year from Delivery Date.
In this Agreement:
(a) headings are for convenience only and do not affect interpretation,and unless the context indicates a contrary intention:
(b) a reference to any party includes that party\\\'s executors, administrators, successors, substitutes and assigns, including any person taking by way of novation;
(c) a reference to \\\'this Agreement\\\' or to any other deed, agreement or document includes, respectively, this Agreement or other such deed, agreement or document as amended, novated, supplemented, varied or replaced from time to time;
(d) words importing the singular include the plural (and vice versa) and words denoting a given gender include all other genders;
(e) a reference to a clause is a reference to a clause of this Agreement; and
(f) references to currency are references to Australian currency unless otherwise specifically provided.
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