Background
A
The Client has requested,
and RDY has agreed to provide, the Client with access to the Services and
Software pursuant to the terms and conditions of this agreement.
Operative
Provisions
1
Software
1.1
Subject to the terms of
this agreement, RDY agrees to provide to the Client a limited, non-transferable,
non-exclusive license to use the Software for the term of this agreement, from
the Commencement Date, within the Territory for the Purpose.
1.2
The Client must not
sub-licence its right to use the Software other than to allocate a Subscription,
provided that the Subscriber Limit is not exceeded at any time.
1.3
To access the Software, RDY
will provide the Client and their Subscribers with a link and the required
credentials to access the Software via the email recorded in the Software.
1.4
The Client is responsible
for allocating Subscriptions and determining what level of access to the
Software a Subscriber will have (i.e. administrator privileges), prior to
activation of that Subscription.
1.5
During the term of this agreement, RDY may (but is
not obliged to):
a.
monitor the use of the
Software by the Client or Subscribers to assess compliance with this agreement;
b.
refuse or cancel a
Subscription at its discretion, where the Subscriber does not agree to, or
fails to comply with, the Subscriber Agreement, breaches a term of this
agreement or otherwise uses the Software in a manner which RDY reasonably
believes is inappropriate;
c.
monitor compliance with
the Subscriber Limit and provide feedback on how many Subscriptions the Client
has consumed at any time;
d.
in limited circumstances,
reset the credentials required to access a Subscription upon request by a
Subscriber who is not the Client, (such as where a student Subscriber has
forgotten their password).
2
Services
2.1
Subject to the terms of this
agreement, RDY will provide the Client with the following services to compliment
the Client’s use of the Software:
a.
the Uptime Guarantee;
b.
the Response Time
Guarantee; and
c.
the Planned Maintenance
Guarantee.
(collectively,
the Services).
3
Software
Updates
3.1
Within a reasonable time of
their release, RDY will update the Software to reflect any changes to relevant
Training Packages.
3.2
In addition to any update
under clause 3.1, RDY may update or otherwise modify the Software at any time for any
other reason.
3.3
Updates are generally
undertaken for the purpose of correcting faults and improving performance or
security (Updates).
3.4
Updates that
are necessary for the Client’s continued access to the Software take place
automatically.
3.5
RDY will take reasonable
steps to advise the Client in advance of any Update that may substantially alter
the functionality, reporting capability or general end user experience of using
the Software.
3.6
RDY will endeavour to
provide the Client with access to the latest Updates as soon as practicable
upon release.
3.7
The Client acknowledges
that the compatibility of the Software and the specifications required to
access the Software with certain devices may vary over time.
3.8
From time to time, RDY may implement Updates to the
Software which require the Client to use third party software, content,
websites, add-ons or plugins (Third
Party Software). If the Client uses Third Party Software, it must do so
subject to any terms and conditions imposed by that third party.
3.9
In addition to Updates, RDY
may, at any time, modify the Software to improve functionality or output of the
Software, or add additional features or product extensions. Where practicable,
notice of these changes will be given to the Client prior to implementation.
4
Subscription Variations
4.1
From the Commencement
Date, the Client will be able to allocate and activate students up to the total
number of Subscriptions provided on the order form for the term of the
agreement.
4.2
The Client may, at any
time during the term of this agreement, notify RDY that it wishes to purchase
additional Student subscriptions pursuant to the Subscription Options so that
it may increase the Student Subscriber Limit and therefore the total number of Student
Subscriptions it can allocate to Students.
4.3
Any requested increase to
the Student Subscriber Limit will not take effect until the Client has paid the
Fees for the additional Student Subscription.
5
Subscriber
Limit
5.1
A Subscription will not,
or will cease to, count towards the Client’s total number of activated
Subscriptions for the purposes of the Subscriber Limit if:
a.
the Subscription has been
archived by the Client within 30 days of activation and the Subscription had
not been actively used at any time;
b.
the Subscription has been
allocated by the Client for use as a ‘Demonstration Only’ student account, provided that the Client
had provided notice to RDY of that intention prior to activation of the Subscription;
c.
the Subscription has been
archived by the Client within 30 days of the end of the current Active Period
of that Subscription.
5.2
Subscriptions provided to
non-Student Subscribers do not count toward the Subscriber Limit.
5.3
Except where clause 5.1 applies, any Subscription activated by the Client will count towards
the Subscriber Limit regardless of whether it has become archived, dormant,
deactivated, suspended, restricted or is otherwise unused during the Term of
that Subscription.
5.4
Any Subscriptions which
are not allocated to a Subscriber within 12 months of purchase by the Client will
expire, but will count as allocated Subscriptions for
the purposes of the Subscriber Limit.
5.5
A Subscription, once
activated in a Subscriber’s name, is non-transferrable.
6
Subscription Period
6.1
Each Subscription will be
made available for a 12-month period commencing from the date the relevant
Subscription is allocated to a Subscriber (Initial
Subscription Period)
6.2
At the end of the Initial
Subscription Period (and any subsequent renewal period) of a Subscription, the
Subscription will continue to be active and allocated to the relevant
Subscriber for a further 12-month period (Renewed
Subscription Period) unless:
a.
RDY notifies the Client
that the Subscription will not be renewed, prior to the end of the current term;
or
b.
the Client archives the
Subscription pursuant to clause 5.1(c).
7
Modifications
7.1
The Client may request that
RDY provide modifications to the Software or Additional Services to suit the
Client’s specific needs, such as:
c.
additional functionality
or customised features (i.e. icons, API to LMS/SMS, reports);
d.
new or additional qualifications;
e.
staff professional
development training sessions and additional support;
f.
uploading of learning and
assessment materials into the +Assessment extension;
(Modifications).
7.2
RDY assesses the
viability of Modifications on a case by case basis. If RDY agrees to provide
Modifications to the Client, the cost of any Modifications will be payable in
addition to the Fees.
7.3
The fees for
Modifications to the Software are generally calculated based on the time taken
to develop those Modifications, at RDY’s daily rate of $2,000, but may be
waived or reduced, at RDY’s discretion.
7.4
RDY will not produce any
Modifications until the Client has been notified of, and agreed in writing to,
the scope of the Modifications and the fees for those Modifications.
8
Rollout Period
During the course of the
Rollout Period, RDY will offer the following support and guidance services to
the Client:
a.
configuration and setup
of the Software;
b.
regular progress meetings
with the Client’s nominated project leader or point of contact;
c.
Administration Training Session/s
which involve training the Client’s key staff responsible for allocating and
overseeing administration of the Subscriptions, as detailed in the Subscription
Options;
d.
‘Train the Trainer’ Session/s
which involves training the Client’s key staff in how to utilise the full
functionality of the Software, as detailed in the Subscription Options;
e.
provision of materials to
assist the Client in encouraging Subscribers to use the Software;
f.
where applicable, prepopulate
the Software with information for qualifications within requested Training
Packages.
8.1
The parties must use
their best endeavours to work together in good faith to implement the Software
into the Client’s systems during the Rollout Period.
8.2
The Client acknowledges
that the Software may not be fully functional or accessible until the Rollout
Period concludes.
8.3
Any training or meetings
provided by RDY under this clause 8 may be undertaken via teleconference, phone, email or site visits, at RDY’s
discretion.
9
Payment Terms
9.1
In consideration for
receiving access to the Software and Services, the Client must pay to RDY the
Fees within 21 days of RDY issuing a tax invoice to the Client for the relevant
Fees.
9.2
A tax invoice for the
Fees will be issued by RDY:
a.
for the Initial Student Subscription
period, upon execution of this agreement by the parties; and
b.
for any additional Student
Subscriptions, upon request by the Client for those Student Subscriptions.
9.3
Unless otherwise agreed,
the Fees are payable by direct deposit to the account nominated by RDY on its
tax invoice.
9.4
The Client must pay the
Fees without deduction, set off or counterclaim.
9.5
Unless otherwise agreed,
any fees for Modifications or any other amounts due under this agreement must
be paid within 21 days of RDY issuing a relevant tax invoice and otherwise must
be paid in the same manner as Fees are paid.
9.6
Unless required by law or
otherwise agreed, RDY will not provide any refund of, or reduction to, the Fees
where:
a.
the Client has not
allocated all available Subscriptions up to the Subscriber Limit;
b.
the Client no longer
requires a Subscription during the Active Period of that Subscription; or
c.
Subscriptions have become
dormant, deactivated, suspended, restricted or otherwise unused.
10
GST
10.1
Terms in this clause have
the same meaning as given to them in the A
New Tax System (Goods and Services Tax) Act 1999 (Cth).
10.2
Unless otherwise
specified in this agreement, all Fees are quoted exclusive of GST and are in
Australian dollars. Where the provision of RDY’s Software or Services
constitutes a Taxable Supply, the Client must pay to RDY, in addition to the
Fees, any GST on the Supply at the same time and in the same manner in which
the Client pay the Fees to RDY.
10.3
RDY will provide the
Client with a Tax Invoice for any Supply.
11
Client
Obligations
11.1
The Client acknowledges
that it has been offered, and has taken, the opportunity to assess the
functionality and suitability of the Software and Services for the Client’s
purposes prior to entering into this agreement.
11.2
Throughout the term of
this agreement, the Client must:
a.
use the Software in
accordance with this agreement and the User Manuals;
b.
take all reasonable steps
to ensure that Subscribers use the Software in accordance with this agreement;
c.
make itself reasonably
available in order for RDY to carry out progress meetings and training pursuant
to clause 8 during the Rollout
Period;
d.
use its best endeavours
to ensure that all credentials provided to access the Software (such as
usernames and passwords) are kept secure and confidential;
e.
take reasonable steps to
prohibit access to the Software by anyone other than the Client or a Subscriber;
f.
enter Client Data into
the Software in accordance with the User Manuals;
g.
accept sole
responsibility for obtaining and maintaining any equipment and ancillary
services (such as a reliable internet connection) which meet the minimum
specifications required to access and use the Software (as set out in the User
Manuals);
h.
promptly provide RDY with
any information or documentation it reasonably requires to
fulfil its obligations under this agreement, upon request;
i.
accept sole responsibility
for ensuring that Subscriptions are archived for the purposes of clause 5.1;
j.
make reasonable attempts
to resolve any issues with the Software before submitting a Request;
k.
accept sole
responsibility for retaining its own copies of any Client Data;
l.
provide RDY with access
to the Client’s equipment, software and facilities as reasonably required to
resolve a Request;
m.
not directly or
indirectly reverse engineer, decompile, disassemble or otherwise attempt to
discover, access or extract the source code, object code or underlying
structure, ideas, know-how or algorithms in respect of the Software;
n.
not modify, translate,
create Improvements to, create derivative works based on, copy, archive,
reproduce, sub-licence, rent, lease, re-sell, distribute, syndicate, display,
perform or otherwise use the Software except as permitted by this agreement, by
law or by consent via notice from RDY. For example, you may not embed the
Software or any part thereof, into another application and then distribute it
to third parties;
o.
not do anything which
could interfere, disable, overburden or otherwise impair the regular
functioning, performance or intended use of the Software;
p.
monitor its compliance
with the Subscriber Limit;
q.
not attempt to access the
Software using unauthorised automated means;
r.
not attempt to upload
viruses, spyware or other malicious code to the Software;
s.
not obtain or commission
Modifications from third parties;
t.
not remove any
proprietary notices or labels from the Software;
u.
not enter Client Data, or
otherwise use the Software, in a manner which is defamatory, threatening,
discriminatory, profane, obscene, illegal or which infringes third party
rights; and
v.
not make any false,
defamatory, misleading or deceptive statement or representation regarding RDY
and/or the Software;
w.
not hinder or prevent RDY
from performing required maintenance or from updating the Software;
x.
not use the Software with
unsupported equipment, software, configurations or other conflicting services.
12
Intellectual
Property Rights
12.1
All right, title and
interest in the Software is owned, retained and vests upon creation, in RDY.
12.2
Nothing in this agreement
gives the Client any right, title or interest in the Software other than as a
licensee pursuant to clause 1.
12.3
The Client retains any
right, title and interest it holds in the Client Data.
12.4
RDY retains all right,
title and interest in the User Manuals, which may only be used by the Client internally
for the purpose of learning how to use the Software.
12.5
The Client grants RDY a
non-exclusive, royalty free licence to use the Client’s business name,
trademarks and other branding during the term of this agreement for the limited
purpose of marketing the Software (for example, by noting the Client as a
customer of RDY on its website).
12.6
Each party must notify
the other as soon as practicable upon becoming aware of:
a.
any actual or apparent infringement
by any person of any Intellectual Property Rights in the Software;
b.
any Claim that use of the
Software infringes the Intellectual Property Rights of any person.
12.7
The Client may request access to the Software at any
time after termination or expiry of this agreement for the sole purpose of obtaining
a copy of the Client Data, subject to the following terms:
a.
access will be granted for a maximum of 7
consecutive days, unless agreed otherwise (Access
Period);
b.
access will be limited to one administrator
Subscriber account;
c.
RDY is not obliged to provide access if it no longer
retains the relevant Client Data at the time of the Client’s request;
d.
RDY may, at its discretion, elect to charge the
Client a fee for access during the Access Period, provided that the Client is
made aware of those fees in advance;
e.
RDY is not obliged to provide access if the Client
did not comply with this agreement during the term of this agreement; and
f.
the terms of this agreement (to the extent they are
applicable), will apply to the Client’s use of the Software during the Access
Period.
12.8
RDY collects, holds and discloses Personal
Information, Client Data and Metadata in accordance with its Privacy Policy
and, with respect to Personal Information, the Privacy Act 1988 (Cth).
13
Confidential
Information
13.1
Subject to clause 13.2:
a.
each party must keep the
Confidential Information of the other party confidential;
b.
each party must not use
the other party's Confidential Information other than for the purpose of
exercising its rights and performing its obligations under this agreement; and
c.
each party must use at
least the same degree of care to avoid disclosure of the other party's Confidential
Information as it uses to protect its own Confidential Information.
13.2
A party may disclose the
Confidential Information of another party:
a.
to its officers,
employees, professional advisers or agents, its related bodies corporate, and
the officers, employees or agents of its related bodies corporate who have a
need to know the Confidential Information and have agreed to maintain
confidentiality in accordance with clause 13.1;
b.
to the extent required by
law, so long as (to the extent possible) the party gives the other party
reasonable advance notice and opportunity to object to the requirement to
disclose such information or obtain an appropriate order to protect its
Confidential Information; or
c.
with respect to
disclosure by RDY; in accordance with its Privacy Policy; or
d.
to satisfy any rule,
convention, practice or requirement of ministerial or parliamentary accountability.
14
Suspension
14.1
RDY may suspend or
restrict the Services and/or access to the Software where:
a.
the Client fails to meet
any of its obligations under this agreement, including where any payment to RDY
is overdue (in addition to any other rights RDY may have);
b.
a Delay Event occurs, in
which case:
i.
RDY must promptly advise
the Client of the particulars of the Delay Event and how long RDY anticipates
it will continue for;
ii.
RDY will not be liable to
the Client, or in breach of its obligations under this agreement arising due
to, or in connection with the Delay Event;
iii.
either party may
terminate the agreement by notice to the other if the Delay Event subsists
continuously for 30 days or more; or
c.
the parties otherwise
agree in writing to the suspension or restriction.
15
Termination
15.1
This agreement and the
rights and obligations of the parties thereunder will subsist until termination
or expiry pursuant to this clause 15.
15.2
Unless terminated earlier
pursuant to this clause 15,
this agreement will expire at the end of the Active Period of a Subscription.
15.3
RDY may terminate this
agreement immediately if the Client:
a.
fails to pay the Fees or
any other amounts when they are due to be paid to RDY;
b.
breaches a term of this
agreement (other than a breach under clause 15.3 (a) or (c), and fails to remedy
that breach within 14 days of receiving notice to do so from RDY; or
c.
breaches a term of this
agreement that cannot be remedied.
15.4
The Client may terminate
this agreement if RDY breaches a material term of this agreement and fails to remedy
that breach within 14 days of receiving notice to do so from the Client.
15.5
This agreement may be
terminated by mutual agreement of the parties.
16
Effect of termination
16.1
On and from the effective
date of termination of this agreement:
a.
RDY will cease providing
the Client and Subscribers access to the Software and Services;
b.
RDY will archive any
Client Data;
c.
RDY may withhold and
retain possession of Client Data or any other property it holds of the Client,
until any outstanding Fees or other amounts owing to RDY are paid.
17
Disclaimer
17.1
Except as otherwise
provided in this agreement, the Software and Services are provided ‘as is’ and
‘as available’ with all faults and without any warranty, guarantee or
representation made by RDY as to the accuracy, reliability, availability,
security, suitability or completeness, error free or uninterrupted provision of
the Software or Services.
17.2
To the maximum extent
permitted by law, RDY disclaims, and the Client agrees to release RDY, its
officers, affiliates, representatives, contractors and employees from, all
liability for any loss or damage (including, but not limited to, special,
indirect, punitive, consequential loss or damage, loss of profits or loss of
data), howsoever arising directly or indirectly in connection with:
a.
Client Data, including,
but not limited to, reliance on any output generated by the Software as a
result of input Client Data (such as making a determination as to whether
Training Package requirements for certification have been met);
b.
any use of the Software
with equipment or other services which are not, or are no longer, compatible
with the Software;
c.
any unauthorised use of
the Software;
d.
use of any Third Party Software;
e.
any failure to resolve a
Request where an act or omission of the Client (or Subscriber) has caused or
contributed to the issue arising from the Request;
f.
errors or interruptions
to the supply of the Software or Services beyond RDY’s reasonable control; and
g.
the Client’s breach of
this agreement;
17.3
With respect to any
liability which has not been disclaimed by RDY, to the maximum extent permitted
by law, RDY limits its liability to the amount paid by the Client to RDY in the
six months prior to the act which gave rise to the liability, regardless of
whether or not RDY had previously been advised of the possibility of the
liability.
17.4
This agreement does not
purport to limit any non-waivable rights that the Client may be entitled to by
law. Where applicable to the Client, RDY’s Services and Software come with
guarantees that cannot be excluded under the Australian Consumer Law set out in
Schedule 2 of the Competition and Consumer Act 2010 (Cth).
The Client may be entitled to a resupply or refund for a major failure of the
Services or Software. The Client may also be entitled to compensation for any
reasonably foreseeable loss or damage caused by a failure of the Services or
Software. Where RDY’s liability cannot be fully excluded by law, RDY limits its
maximum liability, at RDY’s option, to:
a.
the supply of the
Services or Software again; or
b.
the payment of the cost
of having the Services or Software supplied again.
18
Indemnities
18.1
The Client agrees to
indemnify and hold RDY and its officers, employees, representatives, agents and
contractors harmless from and against any liability, loss, damage, costs
(including legal costs), expenses or other liability which may be suffered or
incurred by RDY arising out of, or in connection with, any Claim against RDY by
the Client or any third party, arising from or in connection with:
a.
the Client and
Subscriber’s use of the Software and Services;
b.
the Client Data; and
c.
any breach of this
agreement by the Client.
18.2
The indemnity given by
the Client in clause 18.1 is limited to the extent
that any grossly negligent act or omission of RDY has contributed to the
liability arising.
18.3
RDY agrees to indemnify
and hold the Client and its officers, employees, representatives, agents and
contractors harmless from and against any liability, loss, damage, costs
(including legal costs), expenses or other liability which may be suffered or
incurred by the Client arising out of, or in connection with, any Claim that
the Software infringes the Intellectual Property Rights of a third party.
18.4
The indemnity given by RDY
in clause 18.3 is limited to the extent
that any grossly negligent act or omission of the Client has contributed to the
liability arising.
19
Dispute
Resolution
19.1
If a dispute arises in relation
to the rights and obligations of the parties under this agreement (other than
where a right of termination has arisen pursuant to clause 15.3 or 15.4), (the Dispute), the party raising the
Dispute, must, in the first instance, provide the other party with details of
the Dispute (Dispute Notice).
19.2
The parties must use
their best endeavours and act in good faith to attempt to resolve the Dispute
within 30 days from receipt of the Dispute Notice (Dispute Period), before either party can initiate legal proceedings
or take any other action in relation to the Dispute.
20
Variations
20.1
The terms of this
agreement may be varied:
a.
by written agreement
between the parties; or
b.
by RDY, provided that:
i.
the Client receives
notice of any proposed change to a material term of the agreement (Amendment) at least 30 days before the
change becomes effective (Effective Date);
and
ii.
the Client is given the
opportunity to terminate the agreement without penalty before the Effective
Date if it does not accept the Amendment (after which time the Client is deemed
to have accepted the Amendment).
21
Notices
21.1
Notices given under this
agreement:
a.
must be in writing and
clearly readable in the English language;
b.
must be signed by the
party giving or making it (or signed on behalf of that party by its authorised
representative); and
c.
may be delivered to a
party by hand, prepaid post or by email to that party’s
address or email address as shown in this agreement or to
such other address or person as a party may specify by notice given in
accordance with this clause.
21.2
A notice is taken to be
duly given and received:
a.
if delivered by hand,
when delivered; or
b.
if delivered by prepaid
post, five days after being deposited in the mail with postage prepaid;
c.
if delivered by email,
when sent, provided the sender has not received notice of any failure of the
notice to send.
21.3
Despite clause 21.2,
notices received after 5 pm in the place of receipt or on a non-business day
are taken to be received at 9 am on the next business day.
22
General
22.1
Special Conditions
The special conditions in
Schedule 1 form part of this agreement.
22.2
Relationship between the parties
Except
as expressly provided to the contrary in this agreement, nothing in this agreement
will constitute the parties as principal and agent, employer and employee,
partners or otherwise liable for the acts or omissions of any other party.
22.3
Entire agreement
This
agreement records the entire agreement between the parties in relation to its
subject matter. It supersedes all prior contracts, arrangements, understandings
or negotiations by, or between, the parties in relation to the subject matter
of this agreement.
22.4
Further assurance
Each
party must (at its own expense) do all things that any other party reasonably
requires of it to give the other party the full benefit of any obligations owed
to the other party and expressed in this agreement.
22.5
Counterparts
This
agreement and any variation of this agreement may be executed and take effect
in two or more counterparts, each of which when taken together, will constitute
one and the same instrument.
22.6
Survival
Clauses
12.4,12.9,
13,
16.1(c),
17,
18,
22
and 23 survive
termination of this agreement. The
previous sentence in no way limits the operation of any rule of common law or
equity relating to survival of contractual provisions if and when this
agreement ends.
22.7
No waiver
The
failure, delay or omission by a party to exercise, or to partially exercise, a
right, power or remedy under this agreement does not operate as a waiver of
that right, power or remedy. A party which exercises, or partially exercises, a
right, power or remedy maintains its right to further exercise the same right,
power or remedy or to exercise another right, power or remedy. A party waives a right, power or remedy only
by explicitly doing so in a written notice to the other party and the waiver is
strictly limited to the matters specified in the notice.
22.8
Cumulative rights
The
rights, powers, authorities, discretions and remedies of a party under this agreement
do not exclude any other right, power, authority, discretion or remedy.
22.9
Severability
If
any provision of this agreement is determined by a court or other competent
tribunal or authority to be illegal, invalid or unenforceable then:
a.
where the offending
provision can be read down so as to give it a legal, valid and enforceable
operation of a partial nature it must be read down to the extent necessary to
achieve that result;
b.
where the offending
provision cannot be read down then that provision must be severed from the agreement
in which event, the remaining provisions of this agreement operate as if the
severed provision had not been included; and
c.
the legality, validity or
enforceability of that provision in any other jurisdiction or of the remaining
provisions in that or any other jurisdiction is not affected,
but
only to the extent that is consistent with giving substantial effect to the
intentions of the parties under this agreement.
22.10 Governing
law and jurisdiction
This
agreement is governed by the law of Queensland, Australia. Each party submits to the jurisdiction of the
courts in Queensland in connection with matters concerning this agreement.
22.11 Assignment
by the Client
Unless
expressly stated otherwise in this agreement, the Client must not assign,
transfer, novate, dispose of, declare a trust over or otherwise create an
interest in its rights under this agreement without the prior written consent of
RDY.
22.12 Sub-Contracting
RDY
may, from time to time, sub-contract any part of its obligations under this
agreement to third parties at its own expense.
23
Definitions
and interpretation
23.1 Definitions
In this agreement, the following definitions
will apply:
|
Active Period |
means the Initial Subscription Period and any
Renewed Subscription Period. |
|
Additional Services |
means services in addition to the Services,
including, but not limited, to those set out in Annexure C. |
|
AEST |
means Australian Eastern Standard Time. |
|
Claim |
means any claim, counterclaim, demand, cause of
action or proceedings (whether based in contract, tort or statute) and any
defence to a claim, counterclaim, demand, cause of action or proceedings. |
|
Client Data |
means: a.
any raw information or
data input entered into the Software by the Client
and its employees, representatives and agents; and b.
any information or data
output generated by the Software as a result of the input of information or
data as per (a) above; and
includes any Intellectual Property Rights therein, but which excludes any
Metadata. |
|
Commencement Date |
means the date on which the Fees for the Initial
Subscription Block are received by RDY. |
|
Confidential Information |
means:
a.
the terms of this agreement; b.
all information which:
i.
is by its nature confidential;
ii.
the disclosing party
indicates in writing is information of a confidential nature or which is
marked “Confidential”;
iii.
the recipient ought to
know is confidential; c.
with respect to RDY’s
Confidential Information, includes the following (whether verbal, written, or
in electronic format):
i.
all ideas, concepts,
data, know-how and trade secrets of, or relating to, RDY, its business,
Services and Software;
ii.
any techniques,
methods, processes, programs, specifications, communications, databases,
surveys, drawings, records, reports, software, source code, object code, the
Software, materials, photographs, documents or User Manuals of RDY;
iii.
any information relating
to the business affairs, accounts, marketing plans, prospects, research,
products or finances of RDY;
iv.
any information that
would be of commercial value to any of RDY’s competitors; and
v.
information that relates
to the development processes used for RDY’s products or services; other
than information that the recipient can establish: a.
was in the public
domain when it was given to the recipient;
b.
becomes, after being
given to the recipient, part of the public domain, except through disclosure
contrary to this agreement;
c.
was in the lawful
knowledge and possession of the recipient before it was disclosed to the
recipient, or was otherwise developed independently by the recipient without
reference to or use of any Confidential Information of the other party; or
d.
was lawfully received
by the recipient from another entity having the unrestricted legal right to
disclose that information without requiring the maintenance of
confidentiality.
|
|
Delay Event |
means an event which is beyond the reasonable
control of RDY and which causes a delay or failure in the performance of RDY’s
obligations under this agreement, including but not limited to earthquake,
cyclone, fire, explosion, flood, landslide, lightning storm, war, invasion,
pandemic, sabotage, malicious damage, terrorism or civil unrest, order of any
government or government authority or change to legislation, strikes or other
industrial disputes. |
|
Fees |
means the fees payable per Student subscription
allocated to the Client as set out in the Subscription Options. |
|
Improvement |
means any
adaptation, improvement, modification, derivative of, enhancement made to or
any development thereof. |
|
|
|
|
Initial Subscription
Period |
has that meaning given to it in clause 6.1. |
|
Intellectual Property
Rights |
means:
a.
all present and future
industrial, intellectual or proprietary rights conferred by statute, at
common law or in equity anywhere in the world, whether issued or pending,
registered or unregistered, including all forms of copyright, patents,
trademarks, algorithms, designs, trade secrets, inventions, discoveries,
know-how, confidential information, plant varieties and circuit layouts,
including any modifications and Improvements thereto; and
b.
all statutory and
common law rights including the right to sue for damages and other remedies
against third parties for infringement or misuse of the related intellectual
property, whether or not the infringement or misuse took place before the
date of this agreement and retain all amounts recovered in any action
(whether as to damages, or following an account of profits or on any other
basis) obtained as a result of any such action.
|
|
Metadata |
means all data, excluding Client Data but
including data derived from Client Data, which provides descriptive,
technical, statistical and other metadata type information regarding the
Client’s use of the Software and includes all Intellectual Property Rights
therein.
|
|
Modifications |
has that meaning given to it in clause 7.1.
|
|
Personal Information |
has
that meaning given to it in the Privacy Act
1988 (Cth).
|
|
Planned Maintenance |
means
planned maintenance or system updates to the Software where the Software, or
a significant part thereof, will be unavailable to the Client or Subscribers
for periods greater than 5 minutes. |
|
Planned Maintenance
Guarantee |
has
that meaning given to it in Annexure A. |
|
Privacy Policy |
means
RDY’s privacy policy as amended from time to time, accessible via http://www.readytech.com.au/privacy |
|
Purpose |
means: a.
for the Software’s
intended use as a tool for vocational education and training; and
b.
allocating
Subscriptions pursuant to clause 1.2.
|
|
Renewed Subscription
Period |
has that meaning given to it in clause 6.2.
|
|
Request |
has the meaning given to it in clause 2.1
of Annexure A. |
|
Response Time Guarantee |
has that meaning given to it in Annexure
A. |
|
Rollout Period |
has that meaning given to it in Schedule 1.
|
|
Services |
has the meaning given to it in clause 2. |
|
Software |
means RDY’s suite of software products as
tools for vocational education and training as accessible via computer
software and mobile device applications and marketed together as ‘My
Profiling,’ including the following components: a.
+ Profiling;
b.
+ Assessment;
c.
+ RPL; and
d.
+ Training Plan;
plus any Modifications, Improvements and Intellectual Property Rights
therein. |
|
Student |
means an individual who is a current
enrolled student of the Client. |
|
Subscriber |
means an individual who has, or is
entitled to be allocated, a Subscription, who may only be one of the
following: a.
an officer, employee,
agent, contractor or other representative of the Client; b.
a student who the
Client is assisting to complete a Training Package; or c.
a supervisor of a
student in (b) above. |
|
Subscriber Agreement |
means the agreement between RDY and each
Subscriber, accessible via the Software. |
|
Subscriber Limit |
means the maximum number of Subscriptions
available to the Client to allocate to Students at any one time, determined
by the number of Students Subscribed to by the Client at that time. |
|
Subscription |
means a sub-licence to use the Software
granted to a Subscriber by the Client, pursuant to clause 1,
for no longer than the Active Period and which is restricted by the terms of
the Subscription Agreement. |
|
Student Subscriptions |
means a set amount
of learners/students that the Client may allocate to Subscribers who are
Students, as outlined in the Subscription Options. |
|
Subscription Options |
means the options to vary the Subscriber
Limit, as set out in Annexure B to this agreement but which may be varied by RDY
from time to time. |
|
Territory |
means Australia. |
|
Training Packages |
means government supported training courses,
including requisite qualifications and units of competencies required for
completion of those courses, as accessible via the training.gov.au website. |
|
Uptime Guarantee |
has that meaning given to it in Annexure A. |
|
User Manual |
means any instructional or marketing materials,
in any form, provided or presented to the Client for the purposes of
assisting the Client in using the Software, including but not limited to, any
operating guidelines, manuals, templates, videos, presentations, handouts and
videos. |