EDUMATE
TERMS OF SERVICE
These Edumate
terms of service consist of:
(a) this document and its schedules (“Service
Terms”);
(b) the Edumate services agreement and its schedules (“Service Agreement”)
duly signed by the entity identified as the customer
in Item 1.1 of Schedule 1 of the Service Agreement (“Customer”).
To the extent of any inconsistency between these Service Terms and the
Service Agreement, the terms of the Service Agreement will prevail.
Collectively these documents form the “Agreement”
that is made between The Alpha School System Pty. Ltd. (ABN 87
010 874 816) of 21b/441 Nudgee Road Hendra,
QLD 4011 ("TASS") and the Customer. The Agreement sets out the
terms and conditions on and subject to which TASS will provide, and Customer
will use, the Edumate Software (“Software”)
and any related or additional services (collectively Software and services are
the "Service" or “Services”).
1.
License and provision of products and services
Subject to Customer’s compliance with
the terms and conditions of the Agreement, TASS grants to Customer a
non-exclusive, non-transferable licence to use the Service during the term of
this Agreement for Customer’s internal use only (“License”).
The License is only granted for the
products identified as Products in Item 1.1 of Schedule 1 of the Service
Agreement (“Products”). The Customer is not licensed or otherwise
authorised to use any part of the Service not explicitly defined in the Service
Agreement.
1.1 Support Services
TASS will provide the support services
described in Item 1.1 of Schedule 1 of these Service Terms to the Customer in
relation to the Service (“Support Services”). TASS has
no obligation to provide any other support services or assistance to the Customer
other than the Support Services.
1.2 Additional Services
If TASS accepts a request to provide additional services, TASS will notify the customer and provide a quote to deliver the Additional Services.
1.3 Private Cloud and Cloud Hosting
Where the parties agree the Products purchased by the Customer include
either the Private Cloud Hosting Service or the Cloud Hosting Service (“Cloud”)
clause 1.3 of these Service Terms will apply.
Provision of Services
a) During
the term of the Agreement, TASS will provide Customer with access to
the Service by means of the provision of the additional Cloud services in the
manner specified in Item 3.1 of Schedule 3 and the Cloud Support Services
specified in Item 3.5 of Schedule 3 to this Agreement.
b) If
any consents (which may include, without limitation, consents for TASS to
access, use, store and disclose Customer Data) are required for TASS to
provide the Cloud, the Customer must procure those consents for TASS. TASS’s
obligations to provide the Cloud are conditional on those consents having been
procured. The Customer shall comply with TASS’s reasonable
requests for confirmation of these consents having been procured.
c) TASS may
configure its system for providing access to the Cloud and determine the nature
and manner of its internal technical support in its discretion. The Customer
agrees to comply with such access and use procedures (including as to
communications and security) as TASS notifies the Customer from time to
time.
d) The
Customer shall be responsible for providing its own Customer Access Facilities
and ensuring that the Customer Access Facilities do not at any time adversely
affect TASS,
the Service or the Cloud (including by the presence or
transmission of any virus or similar thing) and are otherwise reasonably
appropriate for use in conjunction with the Cloud and the Service.
e) The
Customer agrees that the maximum data storage space to be made available to it
for the purposes of the Agreement is as specified in Item 3.2 of Schedule 3. Customer
agrees to comply with any notice from TASS (giving
at least 30 days advance notice) for any changes to TASS’s practices, policies and limits relating
to data storage space.
f) If
the Customer's use of the Cloud and/or the Service causes undue
performance loss, or impairs or threatens to
impair the continued proper functioning of TASS’s equipment
or Software or that of any of TASS’s suppliers,
the provision of the Cloud and/or the Service to the Customer may be suspended
without notice.
g) Without
limiting TASS's
rights under clause 1.3(c) either party may at any time request a variation to
this clause 1.3. The other party must consider this request in good
faith. Any variation to this clause 1.3 must be agreed by the parties in
writing and duly documented and signed in the Service Agreement. The
parties agree that:
i.
in no case will a variation of the
clause 1.3 requested by the Customer result in a reduction of the fees payable
by the Customer unless TASS in its absolute discretion agrees to
such a reduction; and;
ii.
if an increase in any fees is necessary
by reason of a variation of the Cloud (as determined by TASS),
on or after the date upon which the variation takes effect, TASS may
issue an invoice for the increase in fees for the balance of the then current
payment period.
Cloud Service levels
h) Subject
to the terms of this Agreement, during the term of this Agreement TASS shall
provide the Cloud in accordance with the Cloud Service Levels as defined in
Item 3.6 of Schedule 3 of these Service Terms.
i) Customer
acknowledges and agrees that TASS may suspend access to, and use of, the
Cloud and the Service in order to coordinate
scheduled work on TASS’s infrastructure
used to provide access to the Service (“Scheduled Maintenance”). Except
where TASS is
required to undertake urgent repairs or maintenance or suspend access to the Service
by law, TASS will:
i.
provide the Customer with reasonable
notice of the Scheduled Maintenance; and
ii.
use reasonable endeavours to schedule
the Scheduled Maintenance for a time which minimises the impact of the
suspension on the Customer’s access to, and use of, the Cloud and the Service.
Customer Data
j) TASS shall
on reasonable notice make Customer Data and related data, documentation or
records maintained on behalf of the Customer available for inspection
by the Customer or the Customer's auditors. The Customer agrees to pay
any reasonable charges invoiced by TASS for
providing this access.
k) TASS shall,
to the extent specified in Item 3.4 of Schedule 3 of these Service Terms, make
backup copies of Customer Data.
l) All
Customer Data is, and remains, the property of the Customer. Each party must
ensure that the Customer Data is to the extent practicable signified as being
the property of the Customer, and remains at all times,
free of any lien, charge or other encumbrance.
m) TASS will
use commercial best efforts, during the Term of this Agreement, to ensure:
i.
the Customer has
access at all times to the Customer Data, from within
the Software,
whilst in the possession or under the control of TASS; and
ii.
the Customer has access to the Customer
Data at any time, and such access is provided without condition or additional charge;
iii.
the Customer may request extraction or
representation of the Customer Data in a different format as is otherwise
provided by the Software, such a request will be treated as an Additional
Service.
n) TASS:
i.
will use commercial best efforts to
implement security measures, and take all reasonable steps, to ensure that
Customer Data is protected against outside misuse, interference
and loss, and from unauthorised access, modification or disclosure, including
undertaking any staff training as may be required at the Customer’s request and
expense; and
ii.
will provide and observe such
additional security measures as may be reasonably requested by the Customer at
the Customer’s expense.
o) TASS must
immediately:
i.
notify the Customer of any actual, suspected or potential breach of this clause 1.3(n); and
ii.
immediately take all reasonable steps
to prevent or stop a suspected or actual breach of this clause 1.3(n), and take all reasonable steps to mitigate the consequences
of such suspected or actual breach.
Availability
p) Customer
accepts that circumstances may arise where TASS is
unable to provide the Cloud, and consequently the Service, under the Agreement
to the Customer. TASS agrees to use its best endeavours to
provide all Services in accordance with the Agreement.
q) In
the event that the Cloud is unavailable for a continuous period in excess of eighteen hours on a Business Day (or
consecutive Business Days) TASS will allow the Customer a fee credit
equal to twice the unavailable time against the invoice of an amount, which
reflects the proportion of the fees attributable to the time during which the
Cloud was unavailable.
r) The
credit provided for by clause 1.3 (q) shall be calculated in good faith
by TASS with
reference to the particular services which
were unavailable, the time during which any of the services were unavailable
and the number of locations at which any of the services were unavailable. For
the avoidance of doubt any credit will be calculated on the value of the Cloud
only and not the entire Fee for the Service.
s) The
Customer agrees that except as set out in clause 1.3(q to r) TASS will
not be liable to the Customer for any claim, loss or
damage whether direct or indirect arising out of TASS’s failure
to supply any Services.
Unexpected Circumstances
t) The
Customer will not hold TASS responsible for any delay or disruption
in the provision of the Cloud in accordance with the Agreement due to
circumstances beyond the control of TASS.
Examples of such circumstances may include but not necessarily be limited to
the following:
i.
government directions;
ii.
acts of God;
iii.
unavailability or suspension by the telecommunications
carriers;
iv.
acts or omissions by third parties.
2. Term
The Agreement commences on the Service Agreement date and continues for
the period(s) identified in clause 2 of the Service Agreement (“Term”).
Except to the extent permitted by the
Agreement and by law, the Customer must not modify, copy, duplicate, reproduce,
merge, combine with any other products, reverse engineer
or decompile the whole or any part of the Service without the prior written
consent of TASS.
Where the parties agree the Products purchased by the Customer include On-premise hosting, the
Customer may make one copy of the software for backup or archival purposes.
4. Acceptable use
The Customer must not make or permit
any use of the Service in a way which in TASS’s reasonable
opinion is unacceptable, including where:
(a) it
involves the publication, communication or recording of anything which is
false, defamatory, harassing or obscene;
(b) it involves the communication of
unsolicited commercial electronic messages;
(c) it would involve the contravention
of any person’s rights (including Intellectual Property Rights);
(d) it may contravene any applicable laws;
(e) it
involves removing or modifying any Service markings or any notice of TASS’s rights;
(f) it
involves making programs or materials resulting from the Service available to
any third party for use in the third party’s business;
(g) it
involves commercially exploiting any part of the Service (including by making
it available to any third party); or
(h) it
involves distributing or transmitting any part of the Service by any means.
The Customer agrees that TASS may
immediately suspend the Customer’s right to use all or any part of the Service, and remove or disable access to any person
that contravenes the restrictions in this clause 4 or is otherwise in breach of
the Agreement.
Edumate is not
liable to the Customer under the Agreement or otherwise if and to the extent the
Customer’s use of the Service is contrary to any laws, regulations or rules
(including those regarding privacy, intellectual property and working with
children) or any third party rights.
5. Customer’s Other Obligations
5.1 Access to Facilities and Employees and
Obligation to Cooperate
The Customer shall provide TASS with
access to the Customer’s premises, equipment and
employees, and shall cooperate with TASS, as
reasonably necessary for TASS to perform its obligations under the
Agreement (including by performing to the Customer Responsibilities set out in
Item 2.1 of Schedule 2 of these Service Terms).
5.2 Data Security
In connection with the operation of the
Service, the Customer shall use reasonable efforts to prevent unauthorised
third parties from accessing the Services.
The Customer shall maintain (and TASS shall
have no responsibility to provide or maintain) adequate technical and
procedural access controls and system security requirements and devices,
necessary to ensure data privacy, confidentiality, integrity, authorisation and
virus detection and eradication.
The Customer agrees that the access
rights of any individual user permitted to use the Services (for example on a named
or password-enabled basis) cannot be shared or used by more than one
individual.
5.3 Data backup
Except where the parties agree
that TASS will
provide either:
a) Private Cloud Hosting; or
b) Cloud Hosting
It is the Customer’s responsibility to
maintain secure and complete back-up copies of data that the Customer processes
or stores using the Service suitable for the Customer’s
requirements. TASS shall have no obligation to perform
such services for the Customer or any liability in relation to any data which
is lost, corrupted or accessed without the Customer’s
authority.
5.4 Data quality
The Customer agrees that it has sole
responsibility for the accuracy, quality, integrity, legal compliance, reliability and appropriateness of all content uploaded to,
processed using, or generated through the Service. TASS shall
have no obligation to ensure data quality or any liability in relation to any
defect, error, inaccuracy or other failure in such
data.
6. Fees and expenses
In
consideration for grant of the license and the use of the Service the Customer
will pay TASS the
Fee or Fees as identified in Clause 3 and Item 1.2 of Schedule 1 of the Service Agreement
(“Fee”).
6.1
Licence and Support Fee
The
Fee shall be payable annually in advance and may be invoiced by TASS no
sooner than 90 days prior to the start of that contract year, with a due date
no sooner than 30 days prior to that contract year.
The
Fee is calculated by TASS in good faith based on the Customer’s
total number of current enrolled students as at the most recent Government
Census Date that occurred prior to the start of the relevant year multiplied by
the fee per student.
7.
Customer to provide information
7.1 Customer to provide student numbers
Customer must provide TASS with
such information as is reasonably required by TASS to
calculate the Fee in accordance with clause 6.1.
7.2 Audit rights
Customer must, subject to receiving
reasonable written notice from TASS, comply with any request from TASS that
the Customer provide access to such information and documents as are reasonably
required for the TASS to verify:
(a) the
accuracy of the information provided by the Customer under clause 7.1; or
(b) the
Customer’s compliance with the terms of this Agreement.
8. Intellectual property
Nothing in this Agreement effects any
transfer or assignment in ownership of any Intellectual Property Rights in the
Service or any item which exists prior to the date of this Agreement, or any
content uploaded to, processed using, or generated through the Service by Customer
and its authorised users.
TASS will own any Intellectual Property
Rights in any materials or other things created by or on behalf of TASS in the course of providing
the Support Services or Additional Services.
TASS hereby warrants to the Customer that TASS has
the necessary rights to grant to the Customer the licence to use the Service as
set forth in this Agreement. In the event of any breach of the foregoing
warranty, the Customer's sole remedy shall be either (at TASS’s sole discretion):
(a) TASS procuring,
at TASS’s expense, the right for the Customer to
use the Software;
(b) TASS modifying
the Service to render it non-infringing or to circumvent the
allegation of infringement (as applicable); or
(c) TASS refunding
to the Customer the full amount of the current year’s Fee upon the cessation of
use of the Service and the return of all copies thereof to TASS.
9.1 Software to comply with
specifications
TASS warrants that the Service shall
perform in all material respects according to the TASS’s published
specifications concerning the Service (when used with the appropriate
computer equipment) for a period of 90 days following the delivery of
the Service to the Customer.
TASS does not warrant that
the Service will operate uninterrupted or that it will be free from
minor defects or errors that do not materially affect such performance, or that
the applications contained in the Service will meet Customer's requirements.
9.2 Remedies for breach of warranty
If the Customer considers that there
has been any breach of the warranty in clause 9.1, the Customer must promptly
notify TASS in
writing.
If TASS confirms
the existence of such a breach, TASS will (at its option) either:
(a) repair
or amend the Service so that it conforms with the warranty; or
(b) refund
the current year’s Fee paid by the Customer for the Service upon the
Customer ceasing the use of the Service and the return of all copies
thereof to TASS.
This is the Customer’s sole and
exclusive remedy for a breach of the warranty in clause 9.1.
9.3 Exclusions
The warranty in clause 9.1 shall not
apply if:
(a) the Service is
used improperly or not in accordance with TASS’s published
Product documentation;
(b) the
defect is caused by a modification to the Service (except a
modification made by TASS as an Additional Service), by the
Customer or third-party hardware or software; or
(c) the
defect could have been avoided by installing an upgrade or update made
available to the Customer under clause 10.
During the term of this
Agreement, TASS shall
make available to the Customer any general updates to, and new releases of, the
Service as and when they are made available by TASS to
the general public.
Any amounts owed by Customer to TASS pursuant
to this Agreement must be paid within seven days from the date of the relevant
invoice from TASS.
In the event any overdue amount owed by the Customer is not paid following
fourteen days written notice from TASS that
such amounts are overdue, then TASS may impose a late payment charge at the
compound interest rate of one percent per month on the overdue amount
calculated from the date on which the amount was due for payment.
In the event any overdue amount owned
by the Customer is not paid within 60 days from when the amount was due for
payment TASS reserves
the right to limit or restrict access to the Service.
The Customer must not assert or exercise
any right of set off against money payable by the Customer to TASS under
this Agreement.
12. Taxes
Expressions which are not defined, but
which have a defined meaning in the A New Tax System (Goods and Services
Tax) Act 1999, have the same meaning when used in this clause 12.
Unless otherwise expressly stated, all
prices or other sums payable or consideration to be provided under the
Agreement are exclusive of GST or any other taxes or duties payable in respect
of the transactions contemplated under the Agreement. In addition to all other
amounts due hereunder, the Customer shall also pay to TASS,
or reimburse TASS as
appropriate, all amounts due for tax on the Service and for sales, use, excise
taxes or other taxes which are measured directly by payments made by Customer
to TASS.
If GST is imposed on any supply made
under or in accordance with the Agreement, the recipient of the taxable supply
must pay to the supplier an additional amount equal to the GST payable on or
for the taxable supply, subject to the recipient receiving a valid tax invoice
in respect of the supply at or before the time of payment.
Where a party is required under the
Agreement to pay or reimburse an expense or outgoing of another party, the
amount to be paid or reimbursed by the first party will be the sum of:
(a) the
amount of the expense or outgoing less any input tax credits in respect of the
expense or outgoing to which the other party, or to which the representative
member for a GST group of which the other party is a member, is entitled; and
(b) if
the payment or reimbursement is subject to GST, an amount equal to that GST.
TASS’s warranties
set forth in the Agreement are the only warranties given and TASS excludes
(to the extent permitted by law) all other warranties, express or implied,
including warranties of merchantability and fitness for a particular
purpose. If any law implies a condition, guarantee or warranty into this
Agreement in relation to the supply of any goods or services by TASS which
cannot lawfully be excluded then, to the maximum extent permitted by law, TASS’s liability for any breach of such
implied term or guarantee will be limited to (in the case of services) the
supply of the relevant service again or the payment of the cost of having that
service re-supplied or (in the case of goods) the replacement or repair of the
goods or the payment of the cost of having them replaced or repaired.
14. Customer Indemnity
Customer agrees to indemnify TASS,
its related bodies corporate and their directors, officers, employees, agents
and contractors against any claims, liability, loss, cost, expense
or damage arising from or in connection with any use of the Service for which
the Customer is responsible or any breach by Customer of its obligations under
this Agreement.
15.1 In
no event will TASS be
liable for any incidental, consequential or other indirect loss or damage
suffered or incurred by the Customer arising out of or in connection with the
Agreement (including loss or corruption of data, loss of profit, loss of use,
wasted overheads, loss of revenue and loss of reputation or goodwill),
regardless of whether TASS was advised of the possibility of such
losses in advance or whether such losses may reasonably be supposed to have
been in the contemplation of both parties as a probable consequence.
15.2 In no
event shall TASS’s liability to the Customer under or in
connection with the Agreement exceed the amount of the Fee paid by Customer
under the Agreement in the twelve months preceding the earliest event giving
rise to the claim, regardless of whether Customer's claim is based on contract,
tort (including negligence), strict liability, product liability or otherwise.
16. Dispute Resolution and Termination
16.1 Dispute resolution
If there is a dispute between the parties in
connection with the Agreement, then within 5 Business Days of a party giving
the other notice of the dispute under this clause 16.1, a representative of
each of the Customer and TASS must meet and use all reasonable
endeavours acting in good faith to resolve the dispute.
If the dispute is not resolved within
21 Business Days of notification under clause 16.1, the parties may (but are
not obliged to) agree to submit the dispute for mediation by an independent
party acceptable to both parties. The mediation will be conducted in
accordance with the Mediation Guidelines published by the Australian Commercial
Dispute Centre. The costs of such mediation will be met equally by the
parties.
A party must not start court
proceedings in relation to a dispute until it has exhausted the procedures in
this clause 16.1. If the parties do not agree to submit the dispute to
mediation under this clause 16.1, then they are free to pursue their rights at
law. Notwithstanding this clause, neither party is prevented from
applying to a court at any stage for urgent injunctive or other relief.
16.2 Termination for convenience
TASS may
terminate the entire Agreement or Products for convenience at any time by
giving Customer 90 days’ prior written Notice.
Customer may terminate the entire
Agreement or Products for convenience at any time after expiry of the Initial
Term by giving Edumate 90 days’
prior written Notice.
16.3 Termination for breach
If a party commits a material breach of
any of its obligations under this Agreement and:
(a) the
breach is not capable of remedy; or
(b) the
breach is capable of remedy but the party in breach has failed to remedy that
breach within 14 days of receiving written notice from the other party,
the non-defaulting party may terminate
the Agreement with immediate effect by written notice to the other party.
16.4 Termination for insolvency
If a party becomes, or threatens to
become, or is in jeopardy of becoming, subject to any form of insolvency
administration or ceases to conduct business so as to properly
perform its obligations under the Agreement, the other party may terminate the
Agreement immediately by written notice to that party.
16.5 Termination for Force Majeure
If a party fails to perform any of its
obligations due to a Force Majeure Event for more than thirty days, the other
party may terminate the Agreement immediately by written notice to that party.
16.6 Termination of Products
The parties’ rights to terminate Products in
accordance with this clause 16 are subject to any provisions in respect of
termination of the Product set out in the Schedules of the Agreement.
If a Product is terminated by the
Customer other than for breach under clause 16.3 before the Service Termination
Date, Customer agrees to pay to TASS the Early Termination Charges of 1
year’s Fee.
Customer agrees that the Early
Termination Charges are a genuine pre-estimate of the anticipated or actual
losses TASS will
incur as a result of such early termination
and are reasonable and not a penalty.
16.7 Consequences of termination
Upon termination of the Agreement, the Customer
must immediately cease using the Service and each party must return or destroy
(at the direction of the other party) any of the other party’s Confidential
Information in the party’s possession within thirty days of termination.
Termination of the Agreement will be
without prejudice to rights accrued prior to the end of the Agreement.
Clauses of the Agreement that are
expressed to, or by their nature, survive the termination or expiry of the
Agreement will survive and continue in effect.
On termination, TASS will
have no obligation (except as required by law) to refund any fees that have
been prepaid by the Customer pursuant to the Agreement.
17. Confidentiality
Each party must keep the Confidential
Information of the other party confidential and must not:
(a) use
or permit the use of that confidential information;
(b) make
copies of that confidential information; or
(c) disclose
that confidential information to any person,
other than for the purposes of this
Agreement, with the other party’s prior written consent or as required by law.
TASS must not use the Customer Data to
contact, solicit or target any person or undertake any data mining or other
data analysis activities that will identify any individual.
18. Privacy
In performing this Agreement, TASS shall
comply with its privacy policy in force, updated from time to time.
Customer acknowledges and agrees
that TASS will
provide the Service from Australia. Customer also acknowledges and agrees
that Customer Data may be accessed by TASS staff outside
of Australia for processing and support purposes.
Customer agrees to obtain any consents
relevant to its use of the Service as required by Commonwealth and State
privacy laws. Such consents include those in relation to the collection, use, disclosure and storage of personal information or sensitive
of any individual whose personal information or sensitive information may be
included in Customer Data or uploaded, stored, or otherwise recorded using the
Service (including disclosure to TASS and its contractors and transfer to
parties located outside Australia).
A party will not be liable for any
delay or failure to perform its obligations under this Agreement if such delay
is due to Force Majeure Event. If a delay or failure of a party to
perform its obligations is caused by Force Majeure Event, the performance of
that party’s obligations will be suspended while the Force Majeure Event
continues.
20. Notice
Any notice required by this Agreement
or given in connection with it, shall be in writing and shall be given to the
appropriate party by personal delivery or by certified mail, postage prepaid,
or recognized overnight delivery services.
If to TASS:
Chief Executive Officer
The Alpha School System Pty Ltd
Unit 21B/441 Nudgee Road
Hendra QLD 4011
If to the Customer:
The address listed for the Customer in
Item 1.1 of Schedule 1 of the Service Agreement.
21.1
This Agreement shall be construed and enforced in accordance with the laws of
the state of Queensland. Each of the parties submits to the jurisdiction
of the courts of Queensland.
21.2
Neither the Agreement nor any rights or obligations under the Agreement may be
assigned, novated or sub-licensed by the Customer without the prior express
written approval of TASS. TASS may
assign, novate or otherwise delegate all or any of its
rights and obligations under this Agreement.
21.3 TASS may
use subcontractors to perform any of its obligations under this Agreement.
21.4
This Agreement terminates and supersedes all prior understandings or agreements
on the subject matter hereof. Unless otherwise permitted under the terms
of the Agreement, the Agreement may be varied or replaced only by a document
that is duly executed by both parties.
21.5
If any term of the Agreement is held by a court of competent jurisdiction to be
invalid or unenforceable, then the Agreement, including all
of the remaining terms, will remain in full force and effect as if
such invalid or unenforceable term had never been included.
21.6 The
Agreement may be executed in any number of counterpart copies, each of which
shall be deemed to be an original if originally executed, all of which shall
constitute one and the same Agreement.
In the Agreement, headings and
underlining are for convenience only and do not affect the otherwise clear
interpretation of this Agreement. Unless the context otherwise requires:
(a) words
importing the singular include the plural and vice versa;
(b) a
covenant or agreement on the part of two or more persons binds them jointly and
severally;
(c) a
reference to an individual or person includes a corporation, partnership, joint
venture, association, authority, trust, state or government and vice versa;
(d) a
reference to a recital, clause, schedule, annexure or exhibit is to a recital,
clause, schedule, annexure or exhibit of or to this Agreement;
(e) a
recital, schedule, annexure, exhibit or a description of the parties forms part of this Agreement;
(f) a
reference to any agreement or licence is to that agreement or licence (and,
where applicable, any of its provisions) as amended, novated, supplemented or
replaced from time to time;
(g) a
reference to any party to this Agreement or any other licence or arrangement
includes that party's executors, administrators, substitutes, successors and
permitted assigns;
(h) where
an expression is defined, another part of speech or grammatical form of that
expression has a corresponding meaning;
(i) a reference to a month is to a calendar
month;
(j) if
an example is given of anything (including a right, obligation
or concept), such as by saying it includes something else, the example does not
limit the scope of that thing; and
(k) no
rule of construction applies to the disadvantage of a party because that party
was responsible for the preparation of this Agreement or any part of it.
23. Additional Definitions
Confidential Information includes
information that is by its nature confidential, is designated as confidential,
or a party knows or ought reasonably to have known is confidential,
but does not include information which is in the public domain or
is in or comes into a party’s possession independently of this Agreement (other
than due to a breach of this Agreement) or is independently developed by a
party. For the avoidance of doubt, Confidential Information includes Customer
Data input by the Customer into the Service.
Customer Access Facilities means
telecommunications, networks, systems and any other
facilities used or required by or on behalf of the Customer for accessing the
Software in manner set out in the Agreement.
Customer
Data means data of any kind of the Customer that
is provided by or on behalf of the Customer to TASS or that
is otherwise generated, held or stored by TASS in
the course of performing the Service and other obligations under the
Agreement, and includes such data that:
a)
may cause the Customer reputational
or brand damage;
b)
may cause the Customer to become
subject to fines or other action by applicable governmental or regulatory
authorities if it is the subject of unauthorised information disclosure, loss
or corruption;
c)
is personal information or records of students or other individuals; and/or
d)
is corporate proprietary or financial information such as may be subject to
the Corporations Act 2001 (Cth) or
would be the subject of intellectual property rights owned by the Customer.
Force Majeure Event means
any communications disruption, fire, lightning strike, flood, earthquake,
natural disaster, sabotage, nuclear contamination, terrorism, war or civil riot
or other event beyond the reasonable control of the affected party to the
extent that it results in the affected party being unable to perform an
obligation (apart from a payment obligation) under this Agreement on time.
Intellectual Property Rights includes
all present and future copyright, all proprietary rights in relation to
inventions (including patents), registered and unregistered trademarks, rights
in confidential information (including trade secrets and know how), registered
designs, circuit layout rights and all other rights generally falling within
the scope of the term “intellectual property rights”.
Government Census Date means
the date in which the Customer reports student numbers to the relevant state or
federal government. Where such a date does not exist
this will be taken to mean the first day of the academic year for the school or
educational institution operated by the Customer.
SCHEDULE
1
Support
Services
Item 1.1: Support Services
This section sets out the scope of the
Support Services and the additional terms and conditions that apply to these
services.
Helpdesk
·
TASS will provide a helpdesk portal through
which Customer can request assistance with the Service.
·
The Customer must nominate up to a
maximum of four staff who may use the helpdesk and provide the names of these
staff to TASS in
writing or as otherwise requested. Only these named staff will be
permitted to log support questions using the helpdesk portal.
· The
portal will allow the Customer to:
· log
questions concerning Service functionality;
· log
requests for custom reports (see below) or additional functionality (to be
assessed as a request for an Additional Services in accordance clause 1.2 of
the Agreement); and
· log
details of issues with TASS.
TASS will
use reasonable endeavours to respond to questions, requests and issues logged
through the helpdesk within a reasonable time.
Software updates and Upgrades
TASS will inform the Customer
of publicly available updates and upgrades to the Service and make
them available to the Customer in accordance with clause 10.
TASS will also provide the Customer with
release notes for these updates and upgrades that explain the changes to Edumate Software functionality.
Additional Services
The following are not included
in the Support Services (but may be requested as Additional Services):
· Installation
and implementation of the Service
· Advice
relating to Customer’s data, hardware, software or
operating environment requirements
· Onsite
visits and training
· Development
of new functionality specifically requested by Customer
· Entering
or storing data on behalf of the Customer
SCHEDULE
2
Customer
responsibilities
Item 2.1: Customer
responsibilities
Without limiting Customer’s
responsibilities and obligations under the terms of the Agreement, Customer is
responsible for the following:
· All
data entry and maintenance
· Importing
of data
· Answering
questions from end users
· Creating
custom reports
· Implementation
planning, management and progress reviews
· All
data backup and storage (except where provided for
under clause 5 to these Service Terms)
· Effectively
communicating to the Customer’s users any changes to the Software
· Changes
to Customer’s ACL (Access Control Lists) setup and making changes to usernames
or passwords and user access
· Providing
sufficient network and computing infrastructure to allow for the smooth running
of the software and sufficient access for TASS support staff
SCHEDULE
3
Private
Cloud and Cloud details
Item
3.1: Access
Manner
of providing access: Encrypted http (HTTPS)
Item
3.2: Data storage
Maximum data storage space: Maximum
50MB per attachment/document and 100GB overall.
Item
3.3: Fees
Usage
fees: Included in the Fee defined by the Agreement
Other fees: as
set out in the Agreement.
Item 3.4: Cloud Backup Policy
Backups will be maintained of the
Customer Data such that at least one full backup is maintained in a separate
location to the main provision of the Service not more than 24 hours old.
Incremental backups are taken every hour throughout the day.
Daily database snapshots will be
maintained for a period of 12 months. Only the most current version of uploaded
files (including video, documents, photos and so forth) will be maintained at
any time.
Item 3.5: Cloud Support Services
Helpdesk - Fault Reporting:
All faults to be logged as a ticket at
http://helpdesk.edumate.com.au
For matters based on a service outage
call Mon-Fri 1300 309 931
In
emergency cases of service outage during weekends or public holidays call 1300
309 931 or alternate advised number
Item 3.6: Cloud Service Levels
TASS will host the Software on a secure
hosting platform located in Australia.
TASS is
to make the Service available to the Customer during the term of the Agreement
on a 24 hour, 365 days per year basis with a target availability of 99.9%,
excluding the following:
·
Any outage caused by Customer’s acts or
omissions, code faults or Customer supplied or requested applications or
plug-ins.
· Any
outage caused by circumstances beyond TASS’s control,
such as but not limited to connectivity faults, upstream providers, external
networks, suppliers, warranty or non-warranty repairs, customer error, inherent
hardware or software defects, power failure or power surge/spike.
· Any
outage to improve, modify or change systems such as the replacement or addition
of server or infrastructure equipment, or change hosting location.
·
Any outage required for Scheduled
Maintenance.