Dystech Australia offers an online Platform and mobile applications that allow Users, such as school teachers, speech pathologists, educational psychologists or parents, to create an Account and/or download an app from the Apple App Store and/or Google Play to assess the performance of a child, pupil or client via our literacy measurement services, motor dysgraphia screening tools and dyslexia screening tools.
Our literacy measurement services, motor dysgraphia screening tools and dyslexia screening tools function by collecting and analysing De-identifiable Data via our App to produce performance reports.
By installing, using or otherwise accessing the platform, you agree to these Terms and Conditions. If you do not agree to these terms and conditions, do not install, use or otherwise access the service.
1.1 In these Platform and Mobile Applications Terms and Conditions (the “Terms”) the words “Dystech Australia”, “Company”, “we”, “us” or “our” refer to Dystech Australia Pty Ltd’s (ACN 627 116 518) and includes its subsidiaries, and their respective directors, employees and agents. “You” or “Your” means the User or any person using the Platform and Mobile Applications.
1.2 You should read these Terms carefully as they apply to your use of the Platform and Mobile Applications. The Platform is comprised of the website located at www.dystech.com.au (“Website”) and mobile Applications (“App”).
1.3 By using or accessing the Platform you indicate your acceptance of these Terms. By accepting these Terms, you agree to the obligations imposed on you under these Terms and, in exchange, we agree to provide you with access to the Platform. If you do not agree to these Terms you should immediately cease accessing and using the Website.
1.4 We reserve all rights to alter these Terms at our discretion. Each time you use the Platform, it is your responsibility to ensure that you are aware of our current terms. Your continued use of the Platform following the publication of changes to these Terms is taken to be your acceptance of those changes.
1.5 These Terms, as amended by us from time to time, continue to apply for as long as you use the Platform and Services or until terminated in accordance with these Terms.
2.1 In these Terms and Conditions:
“Account” means an account created on the Website and/or on one of our apps by a User for the use of the Services;
“Application” or “App” means the Dystech Australia mobile application available on the iOS App Store and Google Play store;
“Associated Entity” means as defined in the Corporations Act 2001 (Cth);
“Assessee” means the individual, such as a child, client or pupil, that is being assessed via the App for the purposes of providing the Services;
“Business Day” means 9:00am – 5:00pm Monday to Friday, excluding Saturdays, Sundays and public holidays in Victoria, Australia;
“Consumer Guarantee” has the meaning given in Division 1 of Part 2-3 of the Australian Consumer Law;
“De-identifiable Data” means the data collected via the App for the purposes of the Services that has been rendered anonymous by removing all personally identifiable information;
“In App Purchase” means those fees charged via the app that we charge for use of the Services via the App;
“Intellectual Property” means all rights in patent, copyright, trade names, trademarks, logos, designs, algorithms, images (including still images, and audio and audio-visual media) and trade secrets;
“Intellectual Property Rights” means all present and future intellectual and industrial property rights throughout the world of whatever nature (whether or not registered or registrable) including but not limited to all rights in respect of technical information, know-how, copyright, trademarks, designs, patents, domain names, business names, logos, drawings, trade secrets, the right to have confidential information kept confidential or other proprietary rights, or any rights to registration of such rights;
“Losses” means all losses, costs, damages, expenses, penalties, third party claims and other liabilities and including all legal and other professional expenses on a solicitor client basis incurred in connection with investigating, disputing, defending or settling any claim, action, demand or proceeding and also includes all foreseeable and consequential loss;
“Material” means any information, data, source codes, drawings, content, text or images in any form (whether visible or not), audio recordings, video recordings, lists, sound, video, links, layout, look and feel, control features and interfaces contained on the Platform, within the modules or otherwise displayed, uploaded or published on, or via, the Platform;
“Monthly Subscription” means that, where applicable, the User will pay a Monthly Subscription Fee and we will provide the Services on a monthly basis until the Account is cancelled or terminated;
“Monthly Subscription Fees” means that, where applicable, the monthly fees as advertised on the Platform that we charge on a monthly basis for use of the Services via the App;
“Non-Excludable Guarantee” means a non-excludable guarantee implied by the Australian Consumer Law;
“Performance Report” refers to the report produced via the App that uses the De-identifiable Data to assess the performance of an Assessee;
“Platform” means the DysTech Platform operated by us, including the Website and App;
“Privacy Laws” means the Privacy Act 1988 (Cth) and the General Data Protection Regulation (EU 2016/679) (as applicable);
“Registration Data” means the information provided by you to us for the purposes of registering for an Account and accessing the Services, and includes, but is not limited to, your name and contact details;
“Related Bodies Corporate” has the meaning given in the Corporations Act 2001 (Cth);
“Services” means the services available on the Platform and as described in clause 3;
“Subscription Cycle” means each billing cycle which is one month in length unless we communicate a different time period to you in writing at the time of sign up;
“Terms” has the meaning in clause 1.1;
“User” means an individual who has created an Account and/or accessed the app for the purposes of accessing the Platform and the Services; and
“Website” means our website located at www.dystech.com.au, all associated sub-domains and any other websites operated by us from time to time.
2.2 Any reference in these Terms to the singular includes the plural, to any gender includes all genders, to any act or statute includes any Act or statute which supersedes, replaces or modifies any earlier Act or statute, to persons includes all bodies and associations both corporate and incorporated and vice versa. Paragraph headings are for reference purposes only and all references to clauses are to clauses in these Terms unless otherwise specified.
3. Using the Services
3.1 Our Services include, but are not limited to, the following:
(a) via the Website:
i) Account registration; and
ii) provision of payment information for the purposes of subscribing to the Monthly Subscription Fee.
(b) via the App:
i) collection of information about each Assessee, which is de-identifiable data and includes, but is not limited to, information relating to the Assesse’s:
- language skills;
- writing and comprehension abilities;
- experience with learning difficulties such as dyslexia, dyscalculia and dysgraphia;
- experience with visual and hearing impairments; and
- other relevant information to provide the Services on our Platform.
iii) collection of reading and writing samples; and
iv) production of a Performance Report.
3.2 Each User is solely responsible for the accuracy and quality of the information provided about each Assessee that is uploaded or input on the Platform, and each User is solely responsible for obtaining any permissions, consents and/or authorisations necessary for the use, transmission and disclosure of the information provided about each Assessee in connection with the Services.
4. Account – For website users only
4.1 To use the Account Services, you must first become a User of the Platform by registering and creating an Account on the Website by providing:
- your name;
- mobile or phone number;
- a valid email address; and
- nominate a password (“Password”); and
4. 2 You will receive confirmation of registration by way of a clickwrap via the Website or Application shortly after you have created your Account with us.
4.3 If you do not provide accurate and complete details, we may not be able to activate your Account, or provide you with complete access to the Platform and Services.
4.4 You agree to keep your Account details current at all times by updating these details on your Account via the App or by contacting us at firstname.lastname@example.org.
4.5 You must not use one email address to register for multiple Accounts.
4.6 You agree that you have sole responsibility for any activity that occurs on or using your Account. You agree to notify us immediately if you become aware of any security breach or any unauthorised use of your Password or Account. You must not provide your account username or password to any person. You agree and acknowledge that you shall be solely responsible for the confidentiality and security of your username and password and any use of your account (including unauthorised use).
4.7 We may, in our absolute discretion, terminate your Account, disable your Account or restrict your access to the Platform (temporarily or permanently) where you breach these Terms or for any reasonable reason and at any time. Under these circumstances, you may be prevented from accessing all or parts of the Platform, your Account details or any other content associated with your Account. We will not be liable to you or any third party if this occurs. We may impose limits or restrictions on the use you may make of the Platform. Further, we may, for any reason, at any time and without notice to you, withdraw the Platform, or change or remove Platform functionality.
5 Monthly Subscription Fee – For website users
5.1 In consideration for us granting you access to the Platform and Services you agree to pay us the Monthly Subscription Fee on a monthly basis.
5.2 The Monthly Subscription starts on the date that you sign up for an Account via the Website and submit payment by providing your payment method details. When you sign up, your first Subscription Cycle will be billed immediately.
5.3 By initiating a Monthly Subscription, you authorise us to charge you the Monthly Subscription Fee at the current rate as advertised on the Platform, which may change from time to time.
5.4 Unless we otherwise communicate a different time period to you at the time you create an Account or otherwise, each billing cycle is one month in length.
5.5 Your Monthly Subscription automatically renews each month and we will automatically bill the Monthly Subscription Fee to your nominated payment method, unless your subscription is cancelled or terminated.
5.6 In the event your paid subscription began on a day not contained in a given month, we may bill your payment method on a day in the applicable month or such other day as we deem appropriate.
5.7 From time to time we may adjust the pricing of the Services. We will provide at least 30 days’ notice of a price increase before it becomes effective (other than any increases due to legal or tax requirements such as the application of GST) by posting a notification on the Platform, sending an email or such other means as we reasonably determine. If you do not cancel your subscription, you will be deemed to have accepted these new fees.
5.8 In app purchases for our mobile apps are handled by Apple App Store and Google Play, please refer to the following for more information:
6. Payment – For website and mobile app users
6.1 All prices for the Monthly Subscription Fee listed on the Platform are in Australian Dollars and inclusive of goods and services tax (“GST”) unless otherwise specified. Prices are subject to change without notice.
6.2 Payment will be debited from your nominated payment method on a monthly basis.
6.3 You may edit your payment method details by logging onto the Platform and editing them in your Account settings.
6.4 If transfer of the Monthly Subscription Fee is not unsuccessful due to expiration, insufficient funds or otherwise, you nonetheless remain responsible for promptly paying the unpaid fees and authorise us to continue billing you via your nominated payment method, as it may be updated, including in the event you attempt to create a new account, reactivate the unsettled account or sign up for a new account. This may result in a change to your payment billing dates. If we cannot charge your account, we reserve the right, but are not obligated, to terminate your access to the Services.
6.5 If your nominated payment method triggers our internal suspect transaction protocols, we may contact you to confirm additional details, or rescind the transaction. If you do not provide the requested information within 7 days, then we may cease providing the Services to you, and your payment will be refunded back to you via your nominated payment method. These information requests are sent to help protect credit card holders from online fraud though we provide no guarantee that we will identify any or all instances of online fraud that may occur in relation to any order made on or via the Platform.
6.6 You agree and acknowledge that we will treat an electronic instruction as authentic and are under no obligation to investigate the authenticity or authority of persons issuing or transmitting such electronic instructions, or to verify the accuracy and completeness of such electronic instructions.
]6.7 Promotional offers and discounts may be offered at our sole discretion, and on such terms and conditions as are notified at the time of the relevant promotional offer or discount.
6.8 Payment processing services for the Services are provided by Stripe and and are subject to the Stripe Connected Account Agreement, which includes the Stripe Terms of Service (collectively, the “Stripe Services Agreement”). By using Stripe to process payments, you agree to be bound by the Stripe Services Agreement, which may be modified by Stripe from time to time. As a condition of enabling payment processing services through Stripe, you agree to provide us with accurate and complete information about you, and you authorise us to share it and transaction information related to your use of the payment processing services provided by Stripe.
6.9 Payment for apps and in app purchases on the Apple App Store and Google Play Store are handled by those platforms accordingly.
7. Refunds – For website and Mobile app users only
7.1 Without limiting our obligations or your rights under law (including the Australian Consumer Law), our Monthly Subscription Fees are non-refundable, unless we specifically communicate otherwise. However, we may (in our absolute discretion) elect to refund the most recent Monthly Subscription Fee paid by that User in the following circumstances:
(a) if that User is cancelling their subscription and requests a refund within 5 business days of the date of making their first payment for their subscription; or
(b) if that User’s subscription is cancelled prior to the end of a Subscription Cycle for which that User has incurred a charge in error, due to that User’s relocation, disability or death.
7.2 Refunds for for apps and in app purchases on the Apple App Store and Google Play Store are handled by those platforms accordingly.
8. Cancellation of Monthly Subscription – For website users only
8.1 You may cancel your Monthly Subscription at any time by cancelling your Monthly Subscription via the account settings in the App or by providing notice 5 days’ notice to us at email@example.com
8.2 If you elect to terminate your subscription, you will continue to have access to your Account until the end of your current Subscription Cycle, unless we determine to refund this Fee, in which case your access will be terminated immediately.
9. Legal Capacity for Website users and Mobile App Users
9.1 You must be eighteen (18) years of age or over to register as a User of the Platform and/or download the app to access the Services. If you are under the age of 18 years (“Minor”), you are unable to register as a User of the Platform and/or download the app to access the Services unless you have permission from a parent or guardian.
9.2 If you are found to be a Minor who has not gained permission from a parent or guardian to register as a User of the Platform and/or download the app to access the Services, we are entitled, at our absolute discretion, to cancel or terminate the Platform and Services.
9.3 Your continued use of the Platform is an acknowledgement by you that:
- you are over the age of eighteen (18) years, or have obtained the relevant permission from a parent or guardian to create an Account; and
- you accept these Terms and agree that you have entered into a binding legal contract with us in relation to these Terms.
9.4 If you are a parent or guardian permitting a Minor to create an account on the Platform and/or download the app, you agree that you are the Account creator and agree to:
- exercise supervision over the Minor’s use of the Platform and Services;
- assume all risks associated with the use of the Platform and Services as outlined in these Terms;
- ensure that all content and information that the Minor may encounter on the Platform and Services is suitable and appropriate for the Minor;
- assume all liabilities resulting from the Minor’s use of the Platform, the Services and their account;
- ensure the accuracy and truthfulness of all information submitted by the Minor; and
- provide the consents contained in these Terms on behalf of the Minor.
10 Platform Use
10.1 You warrant and represent that your access to, and use of, the Platform and Services is not unlawful or prohibited by any laws which apply to you. You understand and agree that any suspected fraudulent, abusive or illegal activity may be referred to appropriate law enforcement authorities.
10.2 All information that we provide is supplied in good faith, but we do not warrant or guarantee the accuracy or completeness of any information provided by us, another user of the Platform or through the Services or any third party. It is not within the scope of our obligations to enquire as to, or to verify, the accuracy or completeness of information that we receive from you, another user of the Platform or any third parties.
10.3 You agree that you have sole responsibility for any activity that occurs on or while using your Account. You agree to notify us immediately if you become aware of any security breach or any unauthorised use of your Account or password.
10.4 You will not:
- modify the Platform or merge any aspect of the Platform with another programme other than as expressly provided under these Terms;
- record, reverse engineer, copy, duplicate, reproduce, create derivative works from, frame, download, display, transmit or distribute any of the Platform or Material therein or the source code of the Platform;
- licence, sell, rent, lease, transfer, assign or otherwise commercially exploit the Platform or Material;
- engage in unlawful behaviour, including unauthorised access to or use of data, services, systems or networks, including any attempt to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures;
- access, store, distribute or transmit:
i) viruses, worm, trojan or other malicious code that corrupts, degrades or disrupts the operation of the Software;
ii) material that is unlawful, unethical, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive or a contravention of the rights of any third party;
iii) material that facilitates illegal activity; or
iv) material that abuses or causes damage or injury to any person or property;
- provide Platform login details or passwords, or otherwise provide access to the Platform, to any unauthorised third party and You will take all reasonable steps to prevent unauthorised access to, or use of, the Platform;
- share any features of the Platform that are not publicly available with any unauthorised third party;
- use the Platform other than for its intended purpose; and
- engage in any conduct on the Platform that is in breach of these Terms (or any other terms mentioned therein).
10.5 The Platform may contain links to third party websites. Any links to such websites provided on the Platform are for convenience only. We do not represent that we have any relationship with any linked websites nor recommend or endorse any goods, services or third-party content appearing on, or via, other websites linked to this Platform. We are not responsible for any loss or damage that may arise from your access to, and/or use of, third party websites, products and services. Additionally, we are not to be held responsible for the content or privacy practices associated with linked websites. You should make your own enquiries before using and/or accessing third party websites.
10.6 If You breach any terms of these Terms, we may, at our absolute discretion, terminate or suspend your access to, and/or use of, the Platform, and/or take further actions against you for breach of these Terms.
11. Delivery and availability of Services
11.1 We will use reasonable endeavours to ensure that the Services, including the production of the Performance Reports, are delivered in a prompt and timely manner. However, delivery times are estimates only and factors outside our control may result in delays. The estimated time of delivery of Services may change without notice. We do not accept any liability for loss or damage suffered by you or anyone as a result of any such delays.
11.2 You agree and acknowledge that access to the Platform and Services is highly dependent on the proper function of the internet and any other computer networks and infrastructure upon which you and/or the Services operate, interface with, are hosted on or connected to, including the networks, hardware, software or systems.
11.3 Except in respect of any Non-Excludable Guarantee, we do not guarantee that the Services, Platform or access thereto will be uninterrupted or error-free and you release and indemnify us in respect of any Losses we may incur and/or claims and/or complaints you (or any of your Related Bodies Corporate and Associated Entities) may have against us in respect of any interruption, error or unavailability of the Platform or Services. You agree that it is your responsibility to make enquiries as to the accuracy or completeness of any information.
11.4 To the maximum extent permitted by law, where the benefit of any such condition, warranty or other obligation is conferred upon you pursuant to any of the Acts, our sole liability for breach of any such condition, warranty or other obligation is limited to supplying of the Services again.
11.5 We make no representations, warranties or guarantees:
- that content available on, or produced by or via the Platform, including any Performance Reports, is accurate, complete, reliable, current, error-free or suitable for any particular purpose. You acknowledge and agree that you will exercise absolute discretion in choosing how to use this content, including any Performance Reports; and
- as to the availability of service levels (including up-time) of the Platform or that the Platform or Material are or will be free from viruses, worm, trojan or other malicious code. You are responsible for taking your own precautions in this respect.
12. Intellectual Property
12.1 We own all Intellectual Property Rights in the Platform, and we retain all rights, title and interest in the Platform, irrespective of any licence we may grant to you to access, and use, the Platform.
12.2 You agree that any Intellectual Property Rights in any content that you upload, post, transmit, or otherwise make available to the Platform or otherwise provide to us becomes our sole and exclusive property immediately upon you uploading or posting to the Platform and you hereby assign all Intellectual Property Rights in all and any such manner to us.
12.3 You must not in any form or by any means reproduce, modify, distribute, store, transmit, publish, use or display the material on another website or create derivative works from any part of the Platform or commercialise any information obtained from any part of the Platform or Material other than as expressly set out in these Terms without our prior written consent.
12.4 We reserve the right to terminate any licence granted to you and/or remove any De-Identified Data from the Platform, at any time, for any reason and without notice to you.
12.5 You agree that you will not modify or copy the layout or appearance of the Platform nor any computer software or code contained in the Platform, and that you will not decompile, disassemble, reverse engineer or otherwise attempt to discover, interfere with or access any source code related to the Platform.
12.6 All Intellectual Property Rights discovered, developed or otherwise coming into existence as a result of, for the purposes of, or in connection with, the Platform will automatically vest in, and are assigned to, us, including any enhancements, improvements and modifications to the Provider IP (collectively, the “Developed IP”).
12.7 You must not represent to anyone or in any manner whatsoever that you are the proprietor of the Platform and/or the Provider IP.
13.1 We will use reasonable endeavours to provide constant, uninterrupted access to the Platform, but as with any software-based product, this cannot be guaranteed. We will not be responsible or liable for any direct or indirect losses or damages suffered or sustained by you as a result of, or in connection with, any interruption or delay in accessing and using the Platform.
13.2 We will, within a reasonable period of time, investigate any alleged error or issue regarding any of the Services, provided that you notify us in writing within seven (7) days of becoming aware of the error or issue with all necessary information to be able to investigate the error or issue. You agree that our liability will be limited in any event to the right to attempt redelivery of the Services to you.
13.3 To the maximum extent permitted by law, no further warranty, condition, undertaking or term, express or implied, statutory or otherwise as to the condition, quality, performance or fitness for purpose of the Platform provided hereunder is given or assumed by us other than as required at law. You acknowledge and agree that the Platform and Material are provided on ‘as is’ basis and that you will make your own investigations into whether or not the Services are fit for your purposes.
14.1 You agree to indemnify and hold us, our Related Bodies Corporate and our officers, directors, employees or contractors (collectively, the “Indemnified”) harmless from and against any and all claims, actions, demands, losses, damages, taxes, liabilities, costs and/or expenses that may be brought against the Indemnified arising out of, or in connection with, your access to, and use of the Platform or Services, and any breach by you of these Terms.
15.1 Any information obtained by you in the course of using the Platform or Services, including any Performance Reports, is not medical information or professional advice provided by us and you must not rely on it in that respect. The information obtained should not be used as a diagnosis. We do not accept any liability for any injury, loss or damage caused by the use of the information on the Platform or contained in any Performance Report.
15.2 To the maximum extent permitted by law, we exclude all:
- conditions, guarantees or warranties expressed or implied by law; and
- any liability to you or to any third person however arising (and whether arising under statute, negligence or otherwise) for any personal injury or death to you or any third person, or for any special, direct, indirect or consequential loss or damage (including, but not limited to, loss of income or revenue, loss or interruption of business, loss of profits, revenue or contracts, loss of anticipated savings, loss of data, loss of use, loss of privacy or loss of goodwill), arising out of, or in connection with, access and/or use of the Platform, or any of the Services and this Agreement.
15.3 Our liability to you is limited to the maximum extent permissible by law. To the extent that our liability is not otherwise excluded, subject to any Non-Excludable Guarantees, our liability to you is limited to the aggregate sum of $1,000.
15.4 To the maximum extent permitted by law, all typographical, clerical or other errors or omissions on the Platform or in the Summative Literacy Performance Report will be subject to correction without any liability on our part.
15.5 You agree that we will not be liable for any indirect, consequential, special or exemplary losses, expenses or liabilities, or loss of profits, loss of revenue, economic loss, loss of goodwill, corruption or alteration of data, failure to realise anticipated savings, loss of opportunity, expectation loss or loss of production, arising out of, or in connection with, the provision or use of the Services, the Platform or these Terms.
15.6 We will have no liability for any losses suffered or any damage caused by errors or omissions in any information or instructions provided to us by you in connection with the Platform or the Services.
15.7 Nothing contained in these Terms excludes, restricts or modifies the application of any condition, warranty or other obligation, the exercise of any right or remedy, or the imposition of any liability under the Competition and Consumer Act 2010 (Cth) or any other national, state or territory legislation where to do so is unlawful.
15.8 This clause 15 survives termination or expiry of these Terms.
17.1 We reserve the right to make changes to these Terms without notice to you. Any amendments to these Terms will have immediate effect from the time that they are published on the Platform.
17.2 If any provision of these Terms is held invalid or unenforceable, such provision will be deemed deleted from these Terms and replaced by a valid and enforceable provision which so far as possible achieves the parties’ intent in agreeing to the original provision. The remaining provisions of these Terms will continue in full force and effect.
17.3 Subject to any other written and signed agreement between you and us, these Terms constitute the entire agreement between the parties in respect of the subject matter of these Terms and supersedes and replaces any prior written or oral agreements, representations or understandings. The parties confirm that they have not relied on any representation that is not expressly incorporated into these Terms.
17.4 A failure or delay by us to exercise a power or right under these Terms does not constitute a waiver of that power or right, and the exercise of a power or right by us does not preclude our ability to take action in respect of the same type of breach at a future date.
17.5 These Terms are governed by, and must be construed according to, the law of the State of Victoria, Australia and the parties submit to the exclusive jurisdiction of the courts in that State.