MOODLECLOUD TERMS OF SERVICE

These Terms of Service (“Terms”) are between Moodle Pty Ltd (ABN 55 116 513 636) (referred to as “Moodle”, “We”, “Us” and “Our”) and the individual, organisation or other entity agreeing to these Terms (referred to as “You” or “Your”), collectively referred to as the Parties or each a Party. These Terms govern the access and use of the cloud hosting services via Our websites including moodlecloud.com (“MoodleCloud Services” or “Website”).

1. ACCEPTANCE
   1. By signing up to access and use the MoodleCloud Services You agree to these Terms. If You do not agree to these Terms, You should notify Us and cease accessing the MoodleCloud Services immediately. If You are agreeing to these Terms on behalf of an organisation, You represent and warrant that You have the power and authority to enter into and bind such organisation.
   2. You acknowledge and agree that, as between Us and You, You are responsible for the acts or omissions of all persons accessing the MoodleCloud Services upon Your authority or permission (“Users”). You must ensure all Users accessing the MoodleCloud Services do so in accordance with these Terms.
   3. These Terms are subject to amendment from time to time. Any Amendments made will be published at moodlecloud.com and We will notify You of the same. You will be treated as having consented to the amended terms by continuing to access or use the MoodleCloud Services 28 days after the date of any such notice unless otherwise specified to You.
2. OTHER TERMS AND CONDITIONS
   1. These Terms complement and hereby incorporate Our Privacy Notice, Cookies Policy and our Data Processing Agreement as set out on Our website at https://moodle.com/privacy-notice/.
   2. Your Users must agree to our Terms of Service and the policies outlined in 2.1.
   3. You may choose to use Third Party Products (defined below) offered with the MoodleCloud Services and their terms of service may apply to You.
3. SERVICES
   1. Users can access and use MoodleCloud Services via the Website on any supporting computer, mobile, tablet or other device (“Device”). We only provide support to Users accessing the MoodleCloud Services via our recommended browsers.
   2. You can access and use MoodleCloud Services for a 28 day free trial or obtain additional features and functionalities, by purchasing a MoodleCloud Services package (Paid Package Service) and pay the applicable fees (Fees) for the specific plan period as set out on the Website. If You choose to include third party products and services that provide additional features or functionalities (Third Party Products) there may be additional fees as set out on the Website.
   3. To obtain access and use the MoodleCloud Services, You must complete the signup form to Moodle’s satisfaction and pay the requisite Fees.
   4. As part of Your MoodleCloud Services You can: (a) manage billing and amend the MoodleCloud Services required; (b) purchase Third Party Products; (c) delete or export Your MoodleCloud site(s); (d) view User and storage space use; and (e) contact Moodle Partners to obtain their services. You may assign and grant Users access to Your MoodleCloud site(s) and administer such Users and their capabilities in Your site.
   5. Your MoodleCloud site will be allocated a limited number of Users and a limited amount of storage space as set out on the Website subject to your chosen plan.
   6. If You have a “Free Forever” service, We will cease providing the MoodleCloud Services and delete Your MoodleCloud Site if Your MoodleCloud account is inactive for 14 days.
   7. Although We endeavour to ensure Third Party Products are maintained and updated on a regular basis, Moodle disclaims all responsibility and liability for the quality, reliability or failure of any Third Party Products.
4. DATA
   1. Account information, including Personal Information or content (Data) that You or Users upload or submit to Your MoodleCloud site(s) may be processed and stored on servers outside Your country.
   2. We will not use, disclose or reference any Data except for support and training purposes in accordance with these Terms or as required for Us to provide or improve the MoodleCloud Services.
   3. You represent and warrant that:
      1. any and all Data You upload or submit via the MoodleCloud Services is Your sole and exclusive property; or
      2. You have secured any and all authorisation and rights to use such Data as applicable under relevant laws.
   4. You grant Moodle a licence to use, copy, transmit, store, process and back-up your Data, account information, Intellectual Property Rights and other related information:
      1. for the provision of MoodleCloud Services to You and Your Users and the performance of Our obligations under these Terms; and
      2. for research and development as required for the improvement of MoodleCloud Services.
   5. It is Your responsibility to maintain copies of all Data which You and a User uploads or submits via the MoodleCloud Services. We will use reasonable industry standards and procedures to prevent Data loss. However, as We utilise third party cloud-based services, We do not guarantee no loss of Data.
   6. If You purchase any Third Party Products, You acknowledge that We may allow such third parties to access any inputted Data as required for the interoperation of the Third Party Products to the MoodleCloud Services. We are not responsible for any disclosure, modification or deletion of Data resulting from any access by such third parties.
   7. You acknowledge and agree that:
      1. We are not responsible for any corruption or loss of any Data; and
      2. b. You are responsible for complying with all laws and regulations regarding the use and disclosure of Your Data including but not limited to the EU’s General Data Protection Regulation 2016/679, UK General Data Protection Regulation, the California Consumer Privacy Act 2018, the Australian Privacy Act 1988 (Cth), or other requirements under any corresponding foreign domestic law (“Privacy Laws”).
   8. We will use and maintain reasonable security systems for the transmission of Data, consisting of encryption and firewall technologies that are generally used in the cloud services sector to provide security for the transmission of such information over the Internet.
5. AVAILABILITY MOODLECLOUD SERVICES
   1. We do not warrant that access to the MoodleCloud Services or Your Data will be available without interruption and at times such access may be unavailable due to maintenance or other development activity. You can check Our service level by accessing Our status page.
   2. Where possible, We will provide notice to You and the Users of any maintenance or development activity in advance via email and on our Website.
6. SUPPORT
   1. We may provide limited technical support to You as set out on the Website and we will endeavour to respond to a support request within a reasonable period of time.
   2. We may refer You to a Moodle Certified Partner if You require specific, customised support. This may incur a support services fee.
7. PAYMENT
   1. You agree to pay the requisite Fees upfront by way of credit card or PayPal to enable You to access and use the MoodleCloud Services.
   2. If You choose a Third Party Product and there are Fees are payable, You agree to pay the Third Party’s Fees upfront or as required to enable You to access and use the Third Party Product.
   3. You agree that We will automatically debit Your PayPal account or credit card to renew Your MoodleCloud Services unless You notify Moodle of Your cancelation of the MoodleCloud Services in writing with at least 30 days notice.
   4. Payment is due on the date of the invoice. If Your nominated payment method is declined We will notify You and automatically retry for up to 10 days. If payment has not been made within 10 days, Your MoodleCloud Services including MoodleCloud Sites may be suspended until payment is made or alternatively Your site may be deleted at Moodle’s sole discretion.
   5. Unless otherwise stated, all amounts are exclusive of Value Added Tax (VAT) or Goods and Services Tax (GST). VAT or GST will be specified and charged where applicable.
8. CANCELLATION OF MOODLECLOUD SERVICES
   1. You may cancel Your MoodleCloud Services at any time. If You cancel Your MoodleCloud Services or Third Party Products, Your access will be terminated at the end of the current billing cycle, and automatic payments will cease at the end of Your current payment period.
   2. It is Your responsibility to retrieve all relevant Data from Your MoodleCloud Site(s) prior to termination.
   3. We may terminate the MoodleCloud Services immediately, at Our sole discretion, if:
      1. You breach any of these Terms not capable of remedy or You do not remedy a breach capable of remedy within 7 days of receiving notice to do so;
      2. We consider that the request for MoodleCloud Services is or was inappropriate, improper or unlawful;
      3. We believe You are insolvent or unable to pay Your debts as they fall due; or
      4. due to a Force Majeure event in accordance with clause 24.
   4. On termination of the MoodleCloud Services, We may retain certain Data as required by law or regulation.
9. REFUND POLICY
   1. Subject to Your rights under the Australian Consumer Law, We may provide You with a refund of any Fees on a case-by-case basis and solely at Our discretion, including if the MoodleCloud Services are unavailable for an unreasonable period of time.
   2. Any cancellation, exchange or refund of a payment relating to a Third Party Product is strictly a matter between You and the relevant third party.
10. USER OBLIGATIONS
    1. You warrant that all information provided to Moodle is true, accurate and complete.
    2. You acknowledge and agree You are responsible for how the Users use the MoodleCloud Services and that:
       1. You and each User uses the MoodleCloud Services at Your own risk;
       2. all usernames and passwords required to access the MoodleCloud Services are kept secure and confidential;
       3. if there is any unauthorised use of Your password or any other breach of security, You will immediately notify Moodle of such activity;
       4. the accessibility and reliability of the MoodleCloud Services is dependent upon Your and each User's choice of web-browser, internet connection, Device, Device operating system other hardware and their settings;
       5. it is Your responsibility to determine that the MoodleCloud Services meet Your needs and Your business and are suitable for the purposes for which the MoodleCloud Services are used;
       6. You are responsible for obtaining any consents, licences, permits and permissions from other parties as required for the MoodleCloud Services to be provided including content within Your MoodleCloud Site, at Your cost, and for providing Us with the necessary consents, licences and permissions upon request; and
       7. You will cooperate with Us and provide Us, as reasonably requested by Us from time to time, with information about Your Device and/or access to Your Data as is reasonably necessary to enable Us to perform the MoodleCloud Services and comply with these requests in a timely manner.
    3. You acknowledge and agree that:
       1. each User is authorised to use the MoodleCloud Services and access or input any Data into the MoodleCloud Site or provide such Data to Us as required for the MoodleCloud Services;
       2. You will procure each User to use the MoodleCloud Services in a lawful manner and in accordance with these Terms; and
       3. MoodleCloud Services may include Third Party Products and services. Your use of MoodleCloud Services may be subject to additional terms with such Third Parties. Where You use a Third Party Product, any such terms are solely between You and the third party.
    4. We are not responsible to any person or entity other than You and nothing in these Terms confers, or purports to confer, a benefit on any other person or entity. If You use the MoodleCloud Services on behalf of or for the benefit of any third party, You agree that:
       1. You are responsible for ensuring that You have the right to do so;
       2. We do not warrant the fitness for purpose or suitability of the MoodleCloud Services for such third party's purposes and third parties may not rely on Moodle for any purpose;
       3. You are responsible for authorising any person who is given access to Your Data, and You agree that We have no obligation to provide any person or entity with access to such Data without authorisation from You and may refer any requests for access to the Data to You to address; and
       4. You will indemnify Moodle, on first demand, against any and all claims, expenses, liabilities or losses arising out of in connection with Our refusal to provide any persons with access to Data in accordance with these Terms or Moodle making Data available to any person with authorisation from You.
    5. You remain solely responsible for complying with all applicable laws. It is Your responsibility to ensure that the storage of and access to Your Data via the MoodleCloud Services and Website comply with laws which are applicable to You, including any laws requiring You to retain records of Your Data.
    6. Each User must have their own safeguards and back-up processes in place to recover from any failures or loss of Data which might occur whilst using the MoodleCloud Services and protecting the confidentiality of Your Data with suitable management procedures, as You may see fit.
11. PROHIBITED USE
    1. You acknowledge and agree that You and each User will not:
       1. attempt to circumvent or disable the Website or any technology features or measures in the Website by any means or in any manner;
       2. attempt to modify, copy, adapt or reproduce the Website except as necessary to use it as represented by Us to You;
       3. distribute, encumber, sell, rent, lease, sub-licence, or otherwise transfer, publish or disclose the MoodleCloud Services to any third party (except as permitted under these Terms) or with our permission;
       4. remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels on the Website or used in connection with the MoodleCloud Services;
       5. use the MoodleCloud Services in any manner to aid in the violation of any third party Intellectual Property Rights;
       6. take any action that interferes, in any manner, with Our rights with respect to the MoodleCloud Services;
       7. upload any products or services offered by third parties, including any plugins other than providing access to an externally-located Third Party product through selecting an activity within a course using the external tool feature;
       8. attempt to undermine the security or integrity of the MoodleCloud Services, servers, computing systems or a third party's computing systems and networks hosting the MoodleCloud Services;
       9. attempt to gain unauthorised access to any materials other than those to which You have been given express permission to access; and
       10. transmit, or input into the Website, any files that may damage any other person's computing devices or software, content that may be offensive, or material or Data in violation of any law (including any content protected by copyright or trade secrets which You do not have the right to use).
    2. You must not, and You must ensure each User does not, post, upload, publish, submit or transmit any content that:
       1. infringes, misappropriates or violates any third party Intellectual Property Rights, publicity rights or Privacy Laws;
       2. is fraudulent, false, misleading or deceptive;
       3. denigrates Moodle or the MoodleCloud Services;
       4. violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability;
       5. is defamatory, obscene, pornographic, vulgar, offensive, promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group;
       6. is violent or threatening or promotes violence or actions that are threatening to any other person; or
       7. promotes illegal or harmful activities or substances.
    3. Ownership and Intellectual Property Rights in any content displayed or accessed through the Website, is the property of the applicable content owner. These Terms do not purport to extend any rights to any content which You do not own.
    4. Any breach of this clause will entitle Moodle, at its discretion, to suspend or terminate Your access to Your MoodleCloud Services.
12. INTELLECTUAL PROPERTY
    1. In these Terms Intellectual Property Rights includes any and all intellectual and industrial property rights throughout the world, whether subsisting now or in the future and includes all copyright and analogous rights, all rights in relation to inventions (including patent rights), registered and unregistered trademarks, designs (whether or not registered or registrable), circuit layouts, trade names, trade secrets, business names, company names or internet domain names.
    2. Title and ownership to all Intellectual Property Rights in the MoodleCloud Services and related documentation remains Our property and the property of Our successors and permitted assigns. Your right to use such Intellectual Property is subject to these Terms.
    3. Subject to these Terms, We grant You a personal, non-exclusive, non-transferable, limited, revocable licence to use and access the MoodleCloud Services in accordance with these Terms.
    4. Title to and all Intellectual Property Rights in any Data You input into MoodleCloud Services remain Your property. However, Your access to such Data stored is contingent on Your ongoing payment of Fees.
    5. You grant Moodle a licence to use, copy, transmit, store, and back-up Your information and Data for the purposes of enabling You to access and use the MoodleCloud Services and the performance of Our obligations under these Terms.
13. DISPUTE RESOLUTION
    1. Any feedback should be provided to Us using the relevant contact form as set out on the Website.
    2. Any dispute concerning these Terms or the access or use of MoodleCloud Services must be initiated in accordance with the following dispute resolution procedure:
       1. the complainant must outline the dispute and outcome sought in writing, within 28 days of the circumstances giving rise to the dispute (“Dispute Notice”).
       2. The Parties agree to meet in good faith to seek to resolve the dispute within 28 days of the Dispute Notice.
       3. If the Parties cannot resolve the dispute within 60 days either Party may pursue the matter at its sole discretion.
    3. Any attempts made by the Parties to resolve a dispute pursuant to this clause are without prejudice to other rights or entitlements of the Parties under these Terms, by law or in equity.
14. AUSTRALIAN CONSUMER LAW
    1. Certain legislation including the Australian Consumer Law (ACL) in the Competition and Consumer Act 2010 (Cth), and similar consumer protection laws and regulations may confer You with rights, warranties, guarantees and remedies relating to the provision of MoodleCloud Services by Moodle to You which cannot be excluded, restricted or modified (“Statutory Rights”).
    2. If You are a consumer under the ACL, nothing in these Terms removes or is intended to restrict Your Statutory Rights. You agree that Our liability for MoodleCloud Services provided to consumers is governed solely by the ACL and these Terms. We exclude all conditions and warranties implied by custom, law or statute except for Your Statutory Rights.
    3. Except for Your Statutory Rights, all material and work is provided to You without warranties of any kind, either express or implied; and We expressly disclaim all warranties of any kind including but not limited to implied warranties of merchantability and fitness for a particular purpose.
    4. If You are a consumer as defined in the ACL, the following applies to You: We guarantee that the services We supply to You are rendered with due care and skill; fit for the purpose that We advertise, or that You have told Us You are acquiring the services for or for a result which You have told Us You wish the services achieve, unless We consider and disclose that this purpose is not achievable; and will be supplied within a reasonable time. To the extent We are unable to exclude liability; Our total liability for loss or damage You suffer or incur from MoodleCloud Services are limited to Us re-supplying the services to You, or, at Our option, Us refunding toYou the amount You have paid Us for the services to which Your claim relates.
15. LIMITATION OF LIABILITY AND DISCLAIMERS
    1. The Parties agree that, Our liability for the MoodleCloud Services is governed solely by the Australian Consumer Law and these Terms
    2. You acknowledge that while We will take reasonable steps to ensure that the MoodleCloud Services will be fit for the purposes as advertised, We do not guarantee that:
       1. the MoodleCloud Services will meet Your specific requirements;
       2. the MoodleCloud Services will work in each of Your desired use case scenarios; and
       3. the MoodleCloud Services are able to be executed on all operating systems.
    3. The MoodleCloud Services use third party services including third party hosting services which are provided without any sort of warranties, and We cannot ensure that these third party hosting services are provided free of defect or without interruption.
    4. We do not warrant that use of MoodleCloud Services or Website will be uninterrupted or error free. The operation of MoodleCloud Services and Website is dependent on third party hosting services and Internet connectivity which can be unpredictable from time to time and limit Your use of the MoodleCloud Services.
    5. All risk arising out of the use or performance of MoodleCloud Services remains with You. You understand and agree that the use of the MoodleCloud Services, material or data downloaded or otherwise obtained through the use of the MoodleCloud Services, is at Your own discretion and risk and that You will be solely responsible for any infections, contaminations or damage to Your computer, system or network. We are not responsible or liable for delays, inaccuracies, errors or omissions arising out of Your use of the MoodleCloud Services or any third party software or operating system.
    6. To the maximum extent permitted by law, We disclaim all warranties, express or implied, including, without limitation, any implied warranties of merchantability, fitness for a particular purpose and non-infringement of third party intellectual property rights or lack of viruses, for the MoodleCloud Services. In no event will We be liable for any consequential, incidental, indirect, special, punitive, or other damages whatsoever arising out of these Terms, the use of or inability to use the MoodleCloud Services or Website, even if We were advised of the possibility of such damages.
    7. You acknowledge that We may pursue any available equitable or other remedy against You as a result of a breach by You of any provision of these Terms.
    8. Our liability for breach of any obligations under these Terms, or breach of any warranty implied by law, will be limited, to the extent permitted by law, to the total price paid by You for the MoodleCloud Services. Our total liability to You for all damages in connection with the MoodleCloud Services will not exceed the price paid by You under these Terms for the 12 months period prior to the act which gave rise to the liability. The foregoing limitations, exclusions and disclaimers will apply to the maximum extent permitted by applicable law, even if any remedy fails its essential purpose.
    9. You acknowledge and agree that We will not be liable for any non-compensatory damages including punitive, aggravated, multiple, exemplary, liquidated or any other non-compensatory damages or the consequences of non-payment.
16. INDEMNITY
    1. You will be liable for and agree to indemnify, defend and hold Moodle harmless for and against any and all claims, liabilities, suits, actions and expenses, including costs of litigation and reasonable legal costs, resulting directly or indirectly from: (i) any information that is not accurate, up to date or complete or is misleading or a misrepresentation; (ii) any breach of these Terms; (iii) and any misuse of the MoodleCloud Services or Website; from or by You, Your Users, Your employees, contractors or agents.
    2. You agree to cooperate with Moodle (at Your own expense) in the handling of disputes, complaints, investigations or litigation that arise as a result of Your use of the MoodleCloud Services including but not limited to disputes, complaints, investigations or litigation that arises out of or relates to incorrect information You have given Us.
    3. The obligations under this clause will survive termination of these Terms.
17. NOTICE
    1. Any notice required or permitted to be given to the User under these Terms will be addressed to the User at the email address provided by the User.
18. FORCE MAJEURE
    1. If performance of these Terms or any obligation under these Terms is prevented, restricted, or interfered with by causes beyond either party's reasonable control (Force Majeure), and if the party unable to carry out its obligations gives the other party prompt written notice of such event, then the obligations of the party invoking this provision shall be suspended to the extent necessary by such event. The term Force Majeure shall include, without limitation, acts of God, fire, explosion, vandalism, pandemics, epidemics, storm or other similar occurrence, orders of acts of military or civil authority, or by national emergencies, insurrections, riots, or wars, or strikes, lock-outs, work stoppages. The excused party shall use reasonable efforts under the circumstances to avoid or remove such causes of non-performance and shall proceed to perform with reasonable dispatch whenever such causes are removed or ceased. An act or omission shall be deemed within the reasonable control of a party if committed, omitted, or caused by such party, or its employees, officers, agents, or affiliates.
19. ENFORCEABILITY
    1. If any provision of these Terms is held by any competent authority to be invalid or unenforceable in whole or in part, the validity of the other provisions of these Terms and the remainder of the provisions in question will not be affected.
20. ENTIRE AGREEMENT AND UNDERSTANDING
    1. In respect of the subject matter of these Terms:
       1. these Terms contain the entire understanding between the Parties; and
       2. all previous oral and written communications, representations, warranties or commitments are superseded by these Terms and do not affect the interpretation or meaning of these Terms.
21. GOVERNING LAW AND JURISDICTION
    1. These Terms are governed by the laws of Western Australia and the federal laws of the Commonwealth of Australia. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in Western Australia.