Terms and Conditions of Use
Background
The be.eSmart Portal (Portal) is a free online resource for educators. It is designed to support educators assist and enable students to engage in a culture of safe and responsible technology use and become empowered positive digital citizens.
The Portal is only for use by adults. It is not for use by students or individuals under the age of 18.
Preamble
These terms and conditions of use (Terms) apply to your use of the Alannah and Madeline Foundation ACN 090 752 800 (AMF, we, us, our) Portal.
By accessing or using the Portal, you acknowledge that you have read, understood and agree to be bound by these Terms. If you do not agree to be bound by these Terms, you must not use the Portal.
We may amend these Terms from time to time, without providing notice to you, by posting an updated version of these Terms on be.esmart.org.au (Portal Website). By continuing to use the Portal, you agree to be bound by the updated Terms. If you do not agree to be bound by the updated Terms, you must stop using the Portal.
YOU SHOULD BE AWARE OF SEVERAL KEY TERMS
In this summary we outline some of the key terms that apply to you. This summary is designed to assist you by disclosing certain terms that affect you. However it is not a substitute for reading and understanding these Terms, and it is not intended to substitute, expand or amend these Terms. Please contact us if you have any questions.
Limitations of our liability
Our liability to you and certain third parties is limited under these Terms (to the extent permitted by law including the Australian Consumer Law) and our liability for certain types of Loss is excluded. These limitations and exclusions of liability generally apply to any Loss suffered by you in connection with your use of the Portal, except where the Australian Consumer Law prohibits us from limiting or excluding our liability.
Your liability and warranties
Your access to, and use of, the Portal is at your own risk. Among your other obligations under these Terms, you will be responsible and liable for: (a) internet access, data download and other network charges arising from your use of the Portal; and (b) the operation, maintenance and security of your Device.
Terminated or blocked access to the Portal
We may decide to block your access to the Portal (which we may do, for example, for security reasons). We may request that you cease any conduct which is contrary to these Terms and it is your obligation to comply immediately with these requests.
Suspended access and modifications to the Portal
We reserve the right to: (a) suspend your use of, or withdraw, the Portal and/or any of its features or components; and (b) add to, amend, remove, or disable access to, any part of the Portal and/or any of its features or components, in each case at any time and for any reason, without notice to you.
Personal information and marketing
We may collect, use, store, disclose and otherwise handle your personal information in accordance with these Terms, our Privacy Policy and applicable legislation.
Definitions
In these Terms, unless the context otherwise requires:
- Australian Consumer Law has the meaning given in the Competition and Consumer Act 2010 (Cth), as amended, replaced or superseded from time to time;
- Consumer has the meaning given in the Australian Consumer Law;
- Device means your own internet-enabled device that is compatible with the Portal and has a current and working internet connection;
- Loss means all liabilities, losses, damages, costs and expenses (including legal costs and expenses, regardless of whether incurred or awarded) arising in contract, tort (including negligence) or otherwise;
Licence
All copyright and other intellectual property rights in the Portal (including all trademarks appearing on Portal) are owned by us and/or our licensors.
We grant you a revocable, non-transferable, non-exclusive, royalty-free, personal licence to use the Portal on your Device for the purpose of assisting you to enable students to engage in a culture of safe and responsible technology use and become empowered positive digital citizens, and to download and print out a copy of the information available from the Portal for your own personal use.
You must not (and must not attempt to):
- except as expressly permitted by the above licence, use or copy any part of the Portal without our prior written consent;
- distribute, translate, modify or tamper with, any part of the Portal;
- create derivative works of, or from any part of, the Portal;
- sell, rent, lease, sub-license, assign, exchange or otherwise transfer your rights under these Terms; or
- permit or assist any person to engage in any act described in paragraphs (a) to (d) above.
Use of the Portal
You must procure your own internet access and Device in order to access and use the Portal. You are responsible for all internet access, data downloads and other network charges arising from your use of the Portal and you agree that we have no responsibility or liability for those charges.
You are responsible for the operation and maintenance of your Device and for ensuring that the Portal is accessible from your Device. This includes installing a compatible operating system (if applicable) for accessing and using the Portal on your Device.
You must not use (or attempt to use) the Portal:
- for any unlawful or dishonest activity, or any activity prohibited by these Terms;
- to access, transmit, publish or communicate material which: some text
- is false, inaccurate, misleading, defamatory, offensive, inflammatory, obscene, unsuitable for minors, abusive, indecent, threatening, or otherwise unlawful;
- is xenophobic, racist, abusive, harassing or hateful;
- is invasive of a person’s privacy or constitutes personal abuse directed at other users;
- is unsolicited or constitutes spam, commercial advertising, the promotion of gambling or the promotion of your own site, business or organisation;
- contains a virus or other harmful code;
- infringes a person's copyright or other rights (including any other intellectual property rights); or
- contains links to other sites that contain or promote the material identified in paragraphs (i) to (vi) above;
- to obtain unauthorised access to (or damage, disrupt or interfere with the operation of) any computer, system, application, network or service;
- in any way that may bring negative exposure or harm to us, our suppliers or other users of the Portal (including by linking the Portal or any part of it in a way that damages or takes advantage of any person's reputation such as: some text
- by implying or suggesting that you have any kind of association or affiliation with that person, or approval and endorsement from that person when there is none; or
- in a way that is illegal or unfair); or
- in any way that may cause us, our suppliers or other users of the Portal to incur liability to a third party.
In addition, you must not do (or attempt to do) any of the following:
- use data mining, robots, screen scraping or similar data gathering and/or extraction tools on the Portal; or
- interfere with the security-related features of the Portal.
We may ask you to cease any conduct which we believe is contrary to these Terms, and you must immediately comply with any such request. We may at any time terminate and block your access to the Portal or the services provided by the Portal for any reason, at our discretion. In addition, we may refer fraudulent, abusive or illegal activity to the relevant authorities.
Performance of the Portal
We will use reasonable endeavours to make the Portal available during our normal business hours. However, the availability of the Portal depends on various third party suppliers, and accordingly, we do not warrant or guarantee that:
- you will be able to use the Portal at any time;
- your use of the Portal will be continuous, uninterrupted, secure or error-free; or
- any defect will be corrected.
You agree that the Portal may not be available for use from time to time, and that you may be disconnected from your use of the Portal at any time for any reason, including if:
- any network connection difficulties occur;
- the systems providing those services are unavailable for any reason (including so that maintenance can be performed);
- you breach any of these Terms; or
- we decide to suspend terminate your access to those services for any reason.
We make no guarantee as to the reliability or performance of the Portal. The performance of the Portal depends on various factors, including the functions, capacity and configuration of your Device, the speed of your internet connection, and the number of users accessing the Portal and the systems that support it.
The information available through the Portal is subject to updates from time to time (including because some of that information is based on material provided by third parties) and, while we aim to ensure that it is up-to-date, there may be delays, errors or omissions that could affect its currency or accuracy. Accordingly, we cannot and do not warrant or guarantee that the information you obtain through the Portal is or will be current, complete or accurate at all times. You agree that you will make your own enquiries to determine whether the information you obtain through the Portal is current, complete and accurate before using or otherwise relying on it. Subject to the 'Liability' section below, we are not responsible for any Loss you suffer or incur as a result of your failure to comply with this paragraph.
Additionally, by using the Portal you agree that the information available through the Portal is general in nature and is intended only to provide resources and general information to support teachers to educate children to be responsible digital citizens. It is not intended to be used as, and must not be used as, specialist information technology, or educational advice, and you agree that accessing or using that information does not create teacher/student or other similar relationship with us. You must not rely on the information available through the Portal and should instead obtain specialist information technology advice appropriate to your circumstances.
Security
In order to access and use the Portal and its features as intended, you must:
- enable the Portal to use essential cookies;
- grant the Portal any other permissions and access to your Device that it requires from time to time.
If you do not grant these permissions and this access, you may be unable to use the Portal or some of its features.
The Portal uses the internet to provide services and information. By using the Portal, you agree to accept all risks associated with using the internet, including the potential exposure to viruses and harmful code which may affect your Device.
We do not warrant or guarantee the security of the Portal. You are solely responsible for the security of your Device (including any data stored on that Device) and for using appropriate and up-to-date software on your Device to detect and manage the threat posed by viruses and other harmful code.
Liability
Under the Australian Consumer Law (and other similar legislation of Australian states and territories), certain statutory guarantees are conferred in relation to the supply of goods or services to a Consumer (Consumer Guarantees).
Where you, as a Consumer, acquire goods or services through your use of the Website the Consumer Guarantees cannot be excluded, restricted or modified.
Liability
Your access to, and use of, the Portal is at your own risk.
To the maximum extent permitted by law:
- we exclude from these Terms all representations, guarantees, conditions, warranties, rights, remedies, liabilities and other terms that may be conferred or implied by statute, general law or custom (except any guarantee or right which if excluded would contravene legislation (including the Australian Consumer Law) and / or cause part or all of this clause to be void); and
- we disclaim all liability (including any indirect, special, incidental, consequential, punitive or exemplary damage or Loss) suffered or incurred by you or any third party, whether directly or indirectly, by reason of any use of the Website.
You indemnify us and our employees, officers, contractors and agents (together the Indemnified Parties), against any reasonable Loss suffered or incurred by the Indemnified Parties in connection with any claim made by a third party due to or arising out of your breach of:
- these Terms;
- any applicable law; or
- the rights (including intellectual property rights) of any person.
Confidentiality
If you access any Confidential Information using the Portal, you must:
- keep such Confidential Information confidential;
- use such Confidential Information only in accordance with these Terms; and
- not disclose such Confidential Information to any person (other than to an officer or employee of the organisation you represent, who is obliged to keep that information confidential) unless required by law.
The obligations in paragraphs (a) to (c) above will continue to apply even if your access to the Portal is disabled, terminated, suspended or withdrawn.
In these Terms, Confidential Information means:
- the information obtained through the Portal; and
- the identity of any user of the Portal,
except in each case for information which is in, or which enters, the public domain otherwise than as a consequence of a breach of these Terms.
Privacy
We may collect, use, store, disclose and otherwise handle your personal information in accordance with these Terms, our Privacy Policy and applicable legislation.
We may also collect other information such as:
- the name of your school;
- the year level you teach;
- the number of students using our 'eSmart Digital Licence Plus' product under your supervision; and
- your achievement of learning outcomes.
You represent to us that the information (including personal information) you provide to us is complete and accurate.
With your consent, we may use your personal information for the purposes of sending you marketing communications and information about our products and services, and that of third parties.
In these Terms, Privacy Policy means our privacy policy, as amended from time to time and which is available at https://www.alannahandmadeline.org.au/privacy-policy (or any replacement web page from time to time).
Third party links
The Portal may contain links to other websites over which we have no control, such as Youtube, Australian Government websites, and the eSafety Commissioner website. Those links are provided for your convenience only, and we are not responsible for their use, effect or content. We make no representations or warranties as to, and accept no responsibility for, the accuracy of information on those websites, nor do we endorse any information, opinions, goods or services referred to on them.
Suspension, withdrawal of or changes to the Portal
We reserve the right to:
- suspend your use of, or withdraw, the Portal and/or any of its features or components; and
- add to, amend, remove, or disable access to, any part of the Portal and/or any of its features or components,
in each case at any time and for any reason, without notice to you.
If requested by us, you must immediately:
- stop using or accessing the Portal; and
- destroy, expunge, disable or restrict access to any information from the Portal that you have printed or downloaded, and any information derived or generated from that information.
We reserve the right to block your access to resources and/or any functionality of the Portal, at any time and for any valid reason, without notice to you.
Miscellaneous
- No waiver – We do not waive a right, power or remedy in connection with these Terms if we fail to exercise or delay in exercising the right, power or remedy. A right, power or remedy is only waived by us if it is in writing and signed by us.
- Governing law – These Terms are governed by the laws of Victoria, Australia. You submit to the exclusive jurisdiction of the courts of Victoria, Australia and the courts having appeal from them.
- Severability – If any part of these Terms is found to be void, invalid, unlawful or unenforceable, that provision is deemed to be ineffective only to the extent of the prohibition, invalidity or unenforceability without invalidating the remaining provisions. The remaining terms remain in force and constitute a binding agreement between you and us.
- Relationship between the parties – Nothing in these Terms constitutes the parties as partners or joint venturers or agents for the other party or give rise to any other form of fiduciary relationship between the parties.
- Entire agreement – These Terms and any other additional terms which may be applicable at different stages of usage of the Portal, replace any previous understanding, agreement, representation or warranty relating to the subject matter in these Terms (including in relation to your use of the Website).
- Force majeure – To the extent permitted by law, we will not be liable to you for any failure to fulfil, or delay in fulfilling, our obligations caused by circumstances outside of our reasonable control.
- Dispute resolution – If you have any issue arising out of these Terms or in relation to the Portal, you must notify us in writing and use reasonable endeavours to resolve the matter through discussions or correspondence with us before commencing any court or tribunal proceedings.
- Notices – Notices to be given to either party must be in writing. Any notices addressed to us must be delivered to us by email to esmart@amf.org.au or at our registered office to Ground Floor, 387 City Road, South Melbourne, 3205.
Last updated: December 2024