Introduction:
A: Analytics for Schools Pty Ltd (ACN 631 678 110) of 14 Bradley St, Officer South, Victoria, 3809 (Service Provider) has expertise in analysing and comparing data sets using the Program.
B: You (the Customer) own the Customer Data and seeks to engage the Service Provider to provide the Services.
C: The Service Provider has agreed to provide the requisite Services, subject to the Terms and conditions set out below.

It is agreed:

1. Definitions
   In these Terms, unless the contrary intention appears:
   Access means the access that is granted by the Service Provider to the Customer to the Results;
   Additional Charge means a charge in accordance with the Service Provider’s standard rates in effect from time to time;
   Charges means the charges payable by the Customer to the Service Provider pursuant to these Terms, as specified in the Quotation; Combined Data means data involving a combination of the Customer Data and data added by the Service Provider from its own sources; Confidential Information means the confidential information of a party which relates to the subject matter of these Terms and includes:
   
   (a) confidential information relating to the Customer or the Customer’s clientele;
   (b) information relating to the personnel, policies or business strategies of the Service Provider;
   (c) information relating to these Terms of Service;
   Customer Data means data provided by the Customer to the Service Provider pursuant to these Terms;
   Customer Software means the software made available by the Customer to the Service Provider for the purposes of the Services;
   
   Deliverable means an outcome which is to be developed by the Service Provider for the Customer pursuant to these Terms, more particularly set out in the Schedule or Quotation; Force Majeure means a circumstance beyond the reasonable control of the Parties which results in a Party being unable to observe or perform on time an obligation under these Terms. Such circumstances will include but will not be limited to:
   
   (a) acts of God, lightning strikes, earthquakes, floods, storms, explosions, fires and any natural disaster;
   (b) acts of war, acts of public enemies, terrorism, riots, civil commotion, malicious damage, sabotage and revolution; and
   (c) pandemics, epidemics and strikes;
   Intellectual Property Rights means copyright, trade mark, design, patent, semiconductor or circuit layout rights;
   Materials means all materials that the Customer owns or has a licence to use and access, including Customer Software and the Customer Data, which are provided by the Customer to the Service Provider for the purpose of the Services;
   Party means either the Service Provider or the Customer as the context dictates;
   Program means the Analytics for Schools Learning Analytics Platform used to collate, analyse and subsequently express the Customer Data for Customers, and to which the Service Provider provides the Access;
   Quotation means the quote provided by the Service Provider to the Customer that sets out the Charges to be paid by the Customer in consideration for the Service Provider’s Services;
   Results means the results of the application of the Program to the Customer Data, accessible through the Program;
   Schedule means a schedule to these Terms;
   Service Provider includes the officers, employees, agents and sub‐contractors of the Service Provider;
   Services means the services to be provided by the Service Provider, more particularly as set out in the Schedule and/or Quotation;
   Term means the time period specified in the Schedule; and
   Terms means these general Terms of Service.
   
   
2. Interpretation
   In these Terms, unless the contrary intention appears:
   (a) the clause headings are for convenient reference only and have no effect in limiting or extending the language of the provisions to which they refer;
   (b) a cross reference to a clause number is a reference to its subclauses;
   (c) words in the singular number include the plural and vice versa;
   (d) words importing a gender include any other gender;
   (e) a reference to a person includes a partnership and a body, whether corporate or otherwise;
   (f) a reference to a clause is a reference to a clause or subclause of these Terms;
   (g) a reference to a subclause is a reference to a subclause of the clause in which that reference is made;
   (h) where a word or phrase is given a particular meaning, other parts of speech and grammatical forms of that word or phrase have corresponding meanings;
   (i) a reference to a Schedule includes a reference to any part of that Schedule which is not physically annexed to these Terms but which is incorporated by reference;
   (j) the recitals to these Terms do not form part of the Terms;
   (k) monetary references are references to Australian currency.
   

3. Services
   3.1 The Service Provider will provide the Services on these Terms.
   3.2 The Service Provider will provide an environment for the retention of the Customer Data in accordance with the specifications set out in the Schedule and Quotation.
   3.3 The Services are provided by the Service Provider on the understanding that:
   (a) the Customer has the permission of each individual to use the Customer Data in the manner specified by these Terms;
   (b) use by the Service Provider of the Customer Data in the manner specified by these Terms will not infringe the Intellectual Property Rights of any person; and
   (c) no further licence or authority is required by the Service Provider in order to provide the Services.
   
   
4. Supply of materials, services and training
   4.1 In supplying the Services, the Service Provider will:
   (a) perform the Services in accordance with any applicable requirements set out in the Schedule and Quotation;
   (b) ensure that appropriately qualified personnel undertake the performance of the Services; and
   (c) use reasonable commercial efforts to perform the Services in accordance with any estimated timetable, delivery date or response time set out in the Schedule and Quotation.
   4.2 The Service Provider will deliver to the Customer any revision or update of the Results and any related updated documentation made available during the term of the Agreement.
   4.3 The Service Provider may make an Additional Charge to the Customer for any resupply of Services or any Services not detailed in the Schedule or Quotation for correction of errors caused by:
   (a) modification, revision or translation of the Customer Data not authorised by the Service Provider;
   (b) use of computer programs other than the Customer Software;
   (c) the Customer’s failure to comply with the Agreement, either directly or indirectly.
   
   
5. Security and control
   5.1 The Service Provider shall at all times effect and maintain reasonable security measures to safeguard the Materials from unauthorised access or use.
   5.2 The Service Provider will host all Customer Data in Australia in accordance with all relevant privacy laws and regulations. However, the Customer agrees that the Service Provider may host and store the Customer Data in a country outside Australia from time to time. If it elects to do so, the Service Provider will provide the Customer with prior notification to this effect and the Customer must ensure that all necessary consent has been obtained from the individuals who are the subjects of the Customer Data.
   5.3 The Service Provider will notify the Customer as soon as practicable after becoming aware of any unauthorised use or copying of the whole or any part of the Customer Data.
   5.4 The Service Provider acknowledges that to the extent the Customer Data is Confidential Information, it is subject to the confidentiality provisions of these Terms, including the obligation to return or destroy such Customer Data.
   5.5 The Service Provider acknowledges that:
   (a) the Service Provider may not use any part of the Combined Data which is derived from Customer Data for any purpose other than for the provision of Services;
   (b) nothing in these Terms limits the Customer’s continued use of any Customer Data which may form part of the Combined Data; and
   (c) subject to the Customer deleting from all copies of the Combined Data any data that have been appended to the original Customer Data by the Service Provider in the performance of Services, the Service Provider has no Intellectual Property Rights or other interest in the resultant Customer Data.
   
   
6. Service Provider’s status
   6.1 The Service Provider is an independent contractor without authority to bind the Customer by contract or otherwise and neither the Service Provider nor the Service Provider’s personnel are agents or employees of the Customer by virtue of these Terms.
   
   
7. Charges
   7.1 The Customer will pay the Charges at the rate and in the manner specified in the schedule section of this document.
   7.2 If the Customer disputes the whole or any portion of the amount claimed in an invoice submitted by the Service Provider, the Customer will pay the portion of the amount stated in the invoice which is not in dispute and will notify the Service Provider in writing (within 7 days of receipt of the invoice) of the reasons for disputing the remainder of the invoice. If it is resolved that some or all of the amount in dispute ought properly to have been paid at the time it was first invoiced, then the Customer will pay the amount finally resolved together with interest on that amount in accordance with the terms of payment set out in these Terms.
   7.3 The Charges are exclusive of taxes, duties and charges imposed or levied in Australia or overseas in connection with the Services. Without limiting the foregoing, the Customer will
   be liable for any new taxes, duties or charges imposed subsequent to the commencement of these Terms.
   
   
8. Confidentiality and privacy
   8.1 A Party will not, without the prior written approval of the other Party, disclose the other Party’s Confidential Information.
   8.2 A Party will not be in breach of clause 8.1 in circumstances where it is legally compelled to disclose the other Party’s Confidential Information.
   8.3 Each Party will take all reasonable steps to ensure that its employees and agents, and any subcontractors engaged for the purposes of these Terms, do not make public or disclose the other Party’s Confidential Information.
   8.4 The Service Provider may at any time require the Customer to arrange for its employees, agents or subcontractors engaged in the performance of these Terms to execute a suitable confidentiality deed. The Customer will arrange for all such deeds to be executed within the timeframe reasonably proposed by the Service Provider.
   8.5 The Customer will on demand return to the Service Provider any documents supplied by the Service Provider to the Customer in connection with these Terms.
   8.6 Notwithstanding any other provision of this clause, the Service Provider may disclose the terms of this Agreement (other than Confidential Information of a technical nature) to its related companies, solicitors, auditors, insurers or accountants.
   8.7 The Parties acknowledge that they each have a responsibility for ensuring that the provision of Customer Data to the Service Provider, and the use made by the Service Provider of the Customer Data pursuant to these Terms, does not infringe the rights of any individual under the Privacy Act 1988 (Cth). The Customer will indemnify the Service Provider in respect of any liability incurred to a third party as a result of the provision of Customer Data to the Service Provider.
   8.8 This clause will survive the termination of these Terms.
   

9. Ownership of Customer Data
   9.1 Subject to any lien arising because of unpaid Charges and subject further to any encumbrances arising outside the Service Provider’s control, the Service Provider acknowledges that the Customer Data (excluding the Customer Data that is the subject of a licence) remains the property of the Customer.
   
   
10. Ownership of Program and Results
    10.1 The Parties acknowledge that, unless and to the extent stipulated to the contrary in the Schedule or Quotation the Service Provider remains sole owner of the Program and the Results and all Intellectual Property Rights associated with the Program and the Results.
    
    
11. Ownership of other materials
    11.1 The Parties acknowledge that, unless and to the extent stipulated to the contrary in the Schedule or Quotation the Customer remains sole owner of the Materials.
    11.2 The Customer will be responsible for obtaining all necessary authorisations and consents from third party licensors which have an interest in the Materials.
    11.3 The Customer grants the Service Provider a royalty free, exclusive licence during the term of these Terms to use the Materials for the purpose of enabling the Service Provider to perform its obligations under these Terms.
    11.4 To the extent that the Customer, as a result of the Access or as a result of its interaction with the Program, creates or generates any new document or materials in which Intellectual Property Rights subsist (Customer Generated Materials), the Customer assigns and transmits its entire right, title and interest in the Customer Generated Materials to the Service Provider as sole, exclusive and absolute owner, and the Service Provider grants to the Customer a royalty free, exclusive licence during the term of these Terms to use the Customer Generated Materials for the purpose of its Access under these Terms.
    
    
12. Acknowledgments regarding Results and Access
    12.1 The Customer agrees and acknowledges that:
    (a) it will not copy, alter, modify or reproduce the Results, or merge all or any part of the Results with any other software, except with the Service Provider’s prior written approval, and except to the extent otherwise authorised by these Terms;
    (b) any copy of the Results made pursuant to these Terms must bear notice of the Service Provider’s ownership of copyright;
    (c) if the Results are modified or altered by the Customer, the Customer will fully indemnify the Service Provider against all liability which may be incurred by the Service Provider if such modifications or alterations infringe any Intellectual Property Rights of a third person or otherwise cause the Service Provider to suffer loss, damages or expense;
    (d) it will not reverse assemble or reverse compile or directly or indirectly allow or cause a third party to reverse assemble or reverse compile the whole or any part of the Results; and
    (e) the Results and its Access are protected at all times from misuse, damage, destruction or any form of unauthorised use.
    
    
13. Compliance with law
    13.1 The Service Provider is under no obligation to the Customer under these Terms or otherwise if its possession or processing of the Materials or related data, documentation or records constitutes a breach of any relevant law or regulation.
    13.2 The Customer will to the extent permissible by law indemnify the Service Provider against all costs and liability incurred as a result of:
    (a) its possession of the Materials or related data, documentation or records; and
    (b) delivering the Materials or other information to a third party as required by law.
    
    
14. Implied terms
    14.1 Nothing in these Terms excludes, restricts or modifies any condition, warranty, right or liability implied in these Terms or protected by law to the extent that such exclusion, restriction or modification would render these Terms or any provision of these Terms void, illegal or unenforceable. Subject to that, any condition, warranty, right or liability which would otherwise be implied in these Terms or protected by law is excluded.
    14.2 The Customer acknowledges and agrees that:
    (a) prior to agreeing to these Terms it has been given a reasonable opportunity to examine and satisfy itself regarding all services which are the subject of these Terms and that prior to agreeing to these Terms it has availed itself of that opportunity; and
    (b) at no time prior to agreeing to these Terms has it relied on the skill or judgment of the Service Provider and that it would be unreasonable for the Customer to rely on any such skill or judgment.
    14.3 Pursuant to s 64A of the Australian Consumer Law (under the Competition and Consumer Act 2010 (Cth)):
    (a) this sub‐clause applies in respect of any of the services supplied under these Terms which are not of a kind ordinarily acquired for personal, domestic or household use or consumption, provided that this sub‐clause will not apply if the Customer establishes that reliance on it would not be fair and reasonable;
    (b) liability for breach of a guarantee conferred by the Australian Consumer Law (under the Competition and Consumer Act 2010 (Cth)), other than those conferred by ss 51– 53 of that Law, is limited, in the case of services, to any one of the following as determined by the Service Provider:
    (i) the supplying of the services again; or
    (ii) the payment of the cost of having the services supplied again.
    

15. Liability of Service Provider
    15.1 Except in relation to liability for personal injury (including sickness and death), the Service Provider will be under no liability to the Customer in respect of any loss or damage (including consequential loss or damage) which may be suffered or incurred or which may arise directly or indirectly in respect of services supplied pursuant to these Terms or in respect of a failure or omission on the part of the Service Provider to comply with its obligations under these Terms.
    15.2 Subject to clause 15.3, the Customer warrants that it has not relied on any representation made by the Service Provider which has not been stated expressly in these Terms or
    upon any descriptions, illustrations or specifications contained in any document including catalogues or publicity material produced by the Service Provider.
    15.3 The Customer acknowledges that to the extent the Service Provider has made any representation which is not otherwise expressly stated in these Terms, the Customer has been provided with an opportunity to independently verify the accuracy of that representation.
    15.4 The Customer will at all times indemnify and hold harmless the Service Provider and its officers, employees and agents (those indemnified) from and against any loss (including reasonable legal costs and expenses) or liability reasonably incurred or suffered by any of those indemnified arising from any proceedings against those indemnified where such loss or liability was caused by:
    (a) a breach by the Customer of its obligations under these Terms; or
    (b) any wilful, unlawful or negligent act or omission of the Customer.
    15.5 In respect of any claim between the parties under or in connection with these Terms, the parties agree that to the maximum extent permitted by law, the operations of Part 4 of the Civil Liability Act 2002 (VIC) and of any laws having a similar effect in the Commonwealth and other States and Territories of Australia are excluded and have no application or effect insofar as any of them would apportion liability to the Service Provider which would not have been so apportioned but for such laws.
    
    
16. Termination
    16.1 Without limiting the generality of any other clause in these Terms, the Service Provider may terminate this agreement with the Customer immediately by notice in writing if:
    (a) the Customer is in breach of any term of these Terms and such breach is not remedied within thirty (30) days of it notifying the Service Provider;
    (b) the Customer becomes, threatens or resolves to become or is in jeopardy of becoming subject to any form of insolvency administration;
    (c) the Customer ceases or threatens to cease conducting its business in the normal manner.
    16.2 If notice is given to the Customer pursuant to clause 16.1, the Service Provider may, in addition to terminating this agreement with the Customer:
    (a) repossess any of its property in the possession, custody or control of the Customer;
    (b) retain any moneys paid;
    (c) charge a reasonable sum for work performed in respect of which work no sum has been previously charged;
    (d) be regarded as discharged from any further obligations under these Terms; and
    (e) pursue any additional or alternative remedies provided by law.
    16.3 Without limiting the generality of any other clause in these Terms, the Customer may terminate this agreement with the Service Provider by providing the Service Provider with 60 (sixty) days’ notice in writing, in which case:
    (a) the Customer will be granted the Access (in accordance with these Terms of Service) for the period of the Term for which any Charges have already been paid by the Customer; and
    (b) the Customer agrees that Access will be disabled by the Service Provider following the expiry of the period referred to in clause 16.3(a).
    
    
17. Force Majeure
    17.1 Neither Party will be liable for any delay or failure to perform its obligations pursuant to these Terms if such delay is due to Force Majeure.
    17.2 If a delay or failure of a Party to perform its obligations is caused or anticipated due to Force Majeure, the performance of that Party’s obligations will be suspended.
    17.3 If a delay or failure by a Party to perform its obligations due to Force Majeure exceeds 60 days, either Party may immediately terminate the Agreement on providing notice in writing to the other Party.
    17.4 If the agreement with the Service Provider formed by these Terms is terminated pursuant to clause 17.3, the Service Provider will refund moneys previously paid by the Customer pursuant to these Terms for services not provided by the Service Provider to the Customer.
    
    
18. Entire Agreement
    These Terms along with the Quotation accepted by the Customer, will supersede any and all other agreements, representations, negotiations and comprises the entire agreement between the Service Provider and Customer.
    
    
19. Precedence
    19.1 The documents comprising these Terms will be read in the following order of precedence:
    (a) the clauses of these Terms;
    (b) the Quotation;
    (c) the Schedules;
    19.2 Where any conflict occurs between the provisions contained in two or more of the documents forming these Terms, the document lower in the order of precedence will where possible be read down to resolve such conflict. If the conflict remains incapable of resolution by reading down, the conflicting provisions will be severed from the document lower in the order of precedence without otherwise diminishing the enforceability of the remaining provisions of that document.
    
    
20. Assignment and novation
    20.1 The benefit of these Terms will not be assigned by the Customer without the Service Provider’s written consent.
    20.2 The Service Provider may consent to the assignment or novation of these Terms by the Customer subject to such conditions as it chooses to impose.
    

21. Waiver
    21.1 No right under these Terms will be deemed to be waived except by notice in writing signed by each Party.
    21.2 A waiver made by the Service Provider pursuant by clause 21.1 will not prejudice its rights in respect of any subsequent breach of the Agreement by the Customer.
    21.3 Subject to clause 21.1, any failure by the Service Provider to enforce any clause of these Terms, or any forbearance, delay or indulgence granted by the Service Provider to the Customer, will not be construed as a waiver of the Service Provider’s rights under these Terms.
    
    
22. Variation
    22.1 The provisions of these Terms will not be varied, except by agreement in writing signed by the Parties.
    
    
23. Disputes
    23.1 Any dispute arising in connection with these Terms which cannot be settled by negotiation between the Parties or their representatives will be submitted to arbitration by The Institute of Arbitrators and Mediators Australia. There will be one arbitrator, the language of the arbitrator will be English, and the place of the arbitration will be as specified in the Schedule.
    23.2 Nothing in this clause will prevent a Party from seeking urgent equitable relief before an appropriate court.
    
    
24. Severability
    If any provision of these Terms is held invalid, unenforceable or illegal for any reason, the Agreement will remain otherwise in full force apart from such provisions which will deemed deleted.
    
    
25. Service Provider’s rights
    Any express statement of the right of the Service Provider under these Terms is without prejudice to any other right of the Service Provider expressly stated in these Terms or existing at law.
    
    
26. Survival of agreement
    26.1 Subject to any provision to the contrary, these Terms will enure to the benefit of and be binding upon the Parties and their successors, trustees, permitted assigns or receivers but will not enure to the benefit of any other persons.
    26.2 The covenants, conditions and provisions of these Terms which are capable of having effect after the expiration of the Agreement will remain in full force and effect following the expiration of the Agreement.
    
    
27. Governing law
    These Terms will be governed by and construed according to the law of the jurisdiction specified in the Schedule.
    
    
28. Notices
    28.1 Notices may be delivered by hand, by mail or by email to the addresses specified in the Schedule or Quotation.
    28.2 Notice will be deemed given:
    (a) in the case of hand delivery, upon written acknowledgment of receipt by an officer or other duly authorised employee, agent or representative of the receiving Party;
    (b) in the case of posting, three days after despatch;
    (c) in the case of email, on the date that the sending party’s email account records that the email has been successfully sent.
    

Schedule

Deliverables