PART A – GENERAL PROVISIONS
1. Term of AGREEMENT
The performance of the Services contemplated by this AGREEMENT shall commence on the date that this AGREEMENT has been signed by the parties and will continue until the first of the following to occur:
- the AGREEMENT is terminated in accordance with Paragraph 11 of the Agreement, or
- Superb Learning has completed the Services contemplated hereby and such Services have been accepted by the Customer.
Superb Learning agrees to complete all contracted tasks on time and within budget pursuant to the terms and conditions of this AGREEMENT.
Full details of the scope of works and services provided are detailed in Schedule 1. Any additional work outside of the scope of works, including (but not limited to) reviews of designs, scripts or content outside of the agreed number of review cycles may result in additional charges, at the rate specified in Schedule 1 of the signed proposal for work.
The Customer agrees to make available all resources, personnel etc to ensure that all contracted tasks are completed on time.
3. Acceptance Criteria
In regard to acceptance:
- The Customer may inspect Superb Learning’s work upon reasonable notice.
- The acceptance criteria for the deliverables contemplated by this AGREEMENT are detailed in Schedule 1 of the signed proposal for work
- Superb Learning shall, as applicable, notify the Customer in writing that its Services hereunder have been completed, or submit each deliverable contemplated by this AGREEMENT to the Customer for its acceptance, and the Customer will have up to ten (10) business days to respond to Superb Learning’s notification of completion or submitted deliverable. If the Customer fails to respond to Superb Learning’s notice or submission within ten (10) business days, the Services and/or deliverables shall be deemed accepted.
- In the event that the Services or any such deliverable do not conform in any material respects to the acceptance criteria set forth herein, the Customer shall have the right to reject the Services and/or such deliverables and to require Superb Learning, at its own expense, to bring
any rejected Services or deliverables into conformity. If such nonconformity jeopardizes the timely or satisfactory completion of the Services, then the Customer, in its sole discretion and upon 30 business days’ notice, may terminate this AGREEMENT.
4. Payment terms
Superb Learning’s invoices will include information with which to reconcile activities undertaken by Superb Learning against applicable deliverables. The amounts invoiced shall not exceed the amounts set forth in this AGREEMENT, as specified in the provided quote.
Payment terms, including the breakdown of project payments, are detailed in Schedule 2 of the proposal for work.
5. Additional Services
All AGREEMENT for design and development work is as a firm fixed price and as such pricing is fixed pursuant to this AGREEMENT. If however, additional services are required by the Customer which are not specifically referenced in this AGREEMENT, the parties may agree to amend this AGREEMENT or enter into a new AGREEMENT or agreement to provide these additional services.
This AGREEMENT may be amended or modified only in writing, by mutual written agreement of the parties hereto. Any additional services provided by Superb Learning will be at a negotiated price between the parties which will not under any circumstance exceed the negotiated rates established in this AGREEMENT.
The CUSTOMER may request Additional Services from THE COMPANY from time to time during the Term by following this procedure:
- sending Superb Learning an Order; and
- accepting Superb Learning’s Proposal for that Order.
Unless the one party otherwise agrees, all information about, or in any way relating to, that party, its business, transactions, affairs, techniques or processes, or its clients, which the other party obtains or learns during this agreement is confidential.
7. Intellectual property
Any materials, resources, ideas, inventions or other intellectual property developed for THE CUSTOMER during this agreement (“the materials”) will become and remain the sole property of THE CUSTOMER. All resources developed and associated source files will be
provided in an electronic format to THE CUSTOMER on completion of the resource project.
Except for materials developed by as sourced from THE CUSTOMER, Superb Learning warrants and guarantees that it presently holds all intellectual property for any materials developed and THE CUSTOMER’s use of the materials will not infringe the intellectual property rights of any third party. The intellectual property rights does not extend to any materials that are curated from any third party sites. All curated content remains the property of the third party.
8. Freedom to contract
Superb Learning will be free to enter into contracts with third parties for the provision of services by Superb Learning to the third party while this Agreement is in force, subject to Superb Learning not being placed in a conflict of interest, or in a possible conflict of interest, as
between Superb Learning’s obligations to THE CUSTOMER under this Agreement.
With regards to other contracts with third parties, Superb Learning will continue to observe all provisions of this AGREEMENT in relation to Confidentiality and Intellectual Property, both during the period of this AGREEMENT and continuing after this AGREEMENT has concluded.
9. Nature of the relationship
Superb Learning and THE CUSTOMER agree that Superb Learning will provide the Services to THE CUSTOMER as a Contractor and will not be in the partnership with THE CUSTOMER or an employee, servant or agent of THE CUSTOMER for any purposes whatsoever.
Superb Learning agrees to perform and observe all obligations and requirements of it by law in relation to THE COMPANY, including but not limited to, paying all necessary taxes, duties and imposts and taking out and continuing all necessary insurances, including public liability,
professional indemnity and compliance with workers’ compensation obligations.
The Customer may terminate this AGREEMENT if the Superb Learning does not fulfill its obligation as set forth in Schedule 1.
In the event of Superb Learning delays in meeting contractual deliverable timelines specified within in Schedule 1, which are not a result of failure of the Customer to meet its contractual obligations set forth within this AGREEMENT, the Customer may, at its sole discretion, (i)
exercise its termination rights pursuant to the Agreement or (ii) continue to engage Superb Learning upon the Customer’s acceptance of a revised plan from THE COMPANY. Such plan will include a revised timeline, deliverables and a pro rata refund for such delays.
In the event the Customer terminates this AGREEMENT, or in the event the AGREEMENT expires, the Customer may request and Superb Learning will comply with continuing services to the Customer under this AGREEMENT for a period of not
less than six months while the Customer transitions to a viable alternate provider.
In the event the Customer terminates this AGREEMENT, Superb Learning may invoice for work conducted that has yet to be paid and invoices must be paid in accordance with the payment terms and conditions.
12. Post-engagement restriction
Superb Learning acknowledges that:
- in the course of the engagement, Superb Learning may have a high level of access to Confidential Information; and/or a position of leadership enabling Superb Learning to have a degree of influence over THE CUSTOMER’S staff and consultants; and
- the disclosure or use of such knowledge and information could materially harm THE CUSTOMER; and
- as a consequence, it is necessary and reasonable for THE CUSTOMER to protect its confidential information, staff and client connections, goodwill and business.
Superb Learning will not, directly or indirectly, whether solely or jointly with any other person, and whether as principal, agent, director, consultant officer, consultant, shareholder, partner, joint venturer, adviser, consultant or otherwise, without the written consent of THE CUSTOMER during the Restraint Period:
- interfere with, canvas, solicit, entice away, disrupt or attempt to disrupt, the relationship, contractual or otherwise, between any Protected Company and any of:
- its Clients in respect of whom Superb Learning has carried out work or had a business relationship at any time during the last 12 months of the Engagement;
- the identified prospective clients with whom Superb Learning has been involved in developing a business relationship for THE CUSTOMER’S benefit, at any time during the last 12 months of the Engagement;
- the suppliers with whom Superb Learning has had dealings or had a business relationship at any time during the last 12 months of the Engagement; or
- use or exploit the Intellectual Property Rights at any time after the Commencement Date;
- claim, represent or otherwise indicate any present association with THE CUSTOMER at any time after two (2) years post the Termination Date in the course of carrying on any trade or business, or claim, represent or otherwise indicate any past association with THE CUSTOMER
for the purpose of obtaining or retaining any business or custom; or
- attempt or counsel, procure or otherwise assist any person to do any of the acts referred to in this subclause.
PART B – RESOURCE DEVELOPMENT SERVICES
This Part B applies if Superb Learning is to provide Resource Development Services to THE CUSTOMER.
13. Company Obligations
Superb Learning will provide Resource Development Services to THE CUSTOMER as negotiated and set out in Schedule 1 of the signed proposal.
Resource Development Services are defined as (but not limited to):
- Online resources
- Print resources
- Augmented Reality resources
- Virtual Reality resources
Resource Development Services may include, but are not required to include:
- Analysing THE CUSTOMER’s need for resource development services;
- Undertaking a scoping process to determine the business objectives, learner needs and technical requirements to design and develop resources.
- Defining THE CUSTOMER’s training requirements for its stakeholders;
- Devising a timeline for the delivery and implementation resources;
- Assisting with THE CUSTOMER’s user acceptance testing process.
Resource Development Services will include a specific number of review cycles as set out in Schedule 1 of the signed agreement.
Resource Development Services occurring outside of these review cycles, including updates and amendments will be charged at the rate set out in Schedule 1, and measured in 60 minute increments.
14. Customer’s Obligations
THE CUSTOMER must ensure a timely response to requests for information, to ensure project timelines are not impacted.
THE CUSTOMER must ensure a timely and sufficient response to the completion of any and all review cycles.
PART C – TRAINING AND CONSULTANCY SERVICES
This Part C applies if Superb Learning is to provide Training and/or Consultancy Services to THE CUSTOMER.
15. Company obligations
Superb Learning will provide Training and/or Consultancy Services to THE CUSTOMER as negotiated and set out in the proposed agreement.
Consultancy Services may include, but are not required to include:
- Analysing THE CUSTOMER’s need for learning and development services;
- Evaluating THE CUSTOMER’s capacity to use and implement required learning and development services;
- Defining THE CUSTOMER’s training requirements for its stakeholders;
- Devising a timeline for the delivery, implementation or upgrade of THE CUSTOMER’s learning and development services.
- Coaching and/or mentoring of THE CUSTOMER’s employees.
Training or Consultancy Services may take place onsite at THE CUSTOMER’s office, onsite at THE COMPANY’s office, onsite at third party venue arranged by THE CUSTOMER or Superb Learning or online.
16. Customer’s obligations
THE CUSTOMER must follow any procedures detailed in clause 5 relating to placing an Order for Consultancy or Training Services.
If Training or Consultancy Services are to be provided online, THE CUSTOMER must provide to Superb Learning, and maintain at THE CUSTOMER’s expense, an Internet connection to enable Superb Learning to provide the Service remotely.
PART D – MANAGED HOSTING SERVICES
This Part D applies if Superb Learning provides Managed Hosting Services (in it’s own right or through third parties) to THE CUSTOMER.
17. Company Obligations
Superb Learning will provide a managed hosting service for the Application.
The managed hosting service for the Application includes:
- hosting the Application on infrastructure in a data centre; and
- installation of the Application; and
- server administration; and
- backups and restoration.
Superb Learning will host a single instance of the Application for THE CUSTOMER.
Superb Learning does not warrant that Users will have continuous access to the Application but will use reasonable endeavours (where possible within the control of Superb Learning) to achieve the Performance Standard. Failure to achieve the Performance Standard does not amount to a material breach of this Agreement and Superb Learning will not be liable to you if the Application is unavailable to you or to Users due to computer downtime attributable to malfunction, upgrades or preventative or remedial maintenance or to causes beyond Superb Learning’s control or causes which are otherwise not reasonably foreseeable by Superb Learning, including telecommunication or digital transmission failures, failures of a third party provider) or as a result of a Force Majeure.
18. Server Administration
Superb Learning or associated third party may perform maintenance on the network, operating systems and database. THE CUSTOMER acknowledges that this maintenance may require a Scheduled Outage and may adversely affect the performance or Availability of the Services.
Superb Learning will provide at least 2 days notice of a Scheduled Outage.
Superb Learning will administer the graphical user interface of the Application using the administrator role.
Superb Learning will not:
- provide support to THE CUSTOMER’s end-users; nor
- provide support to THE CUSTOMER’s staff beyond the nominated contact person; nor
- provide email or phone support to THE CUSTOMER, unless agreed to under a signed proposal; nor
- maintain, develop or guarantee compatibility, security or stability of any third party code that THE CUSTOMER decides to integrate with the Application.
20. Customer’s Obligations
THE CUSTOMER must not use the Services in any way that would unreasonably interfere with any other customers of Superb Learning in a shared hosting environment. This includes a user concurrency that does not exceed the maximum total users indicated in any signed proposals and as measured in any 1 minute window.
THE CUSTOMER will:
- perform end-user testing of the Application during the staging process (if applicable) and after production server upgrades;
- ensure that proposed changes to dependent systems are communicated to THE COMPANY so that the impact on the operation of the Application can be determined; and
- manage THE CUSTOMER’s overall use of the Application.
In addition to any other obligations detailed in this Agreement, THE CUSTOMER is responsible for the content of Materials it provides or posts to the Website or on the Application and any other associated material and information to be hosted by THE COMPANY as part of the
THE CUSTOMER warrants that any Material it provides on the Website or Application and, information on or linked from the Website or Application will not, at any time:
- infringe the Intellectual Property Rights of any person;
- contain material which is offensive, upsetting, defamatory, personally offensive;
- impersonates or invades the privacy of another person;
- be used for any purpose or activity of an illegal, fraudulent or defamatory nature;
- encourage a violation of any law or regulation, including but not limited to the sale of illegal goods or the vilification of minority groups;
- involve the display, sale, distribution or creation of any pornographic, obscene or otherwise offensive goods, services, material or ideas or promote violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation or age;
- provide mirroring service for other websites; or
- be used for trolling, mailbombing, irc bots, game emulators or the transmission of “junk mail,” “spam,” the unsolicited mass distribution of e-mail or any unethical marketing practices.
THE CUSTOMER acknowledges and agrees that Superb Learning has the right, at its sole discretion, to suspend the accessibility of the Website or the Application and to exclude or remove from the Website or Application any content where there is a breach or for any of the following reasons:
- where CGI scripts or programs consume an unreasonable amount of central processing unit (“CPU”) usage, random access memory (“RAM”), or other system resources in excess of the Statement of Work detailed in the signed proposal;
- where you become the subject of any formal complaint or investigation related to the Website or Application;
- where the Website or content you place on the Application may, in the reasonable opinion of Superb Learning, expose Superb Learning to civil or criminal liability or public ridicule; or
- where Superb Learning receives a notice from a relevant authority directing Superb Learning to remove the Website or parts of the Application from Superb Learning’s web servers, provided that such right will not place an obligation on Superb Learning to monitor or exert
editorial control over the Website, and does not displace your primary responsibility to do so.
THE CUSTOMER warrants and covenants that:
- it will satisfy all obligations in this Agreement;
- it has obtained all necessary authorisations and licences for each hypertext link to third party websites;
- it holds all necessary licences from the required jurisdictions to engage in the advertising and sale of any goods and services which may be offered on the Website or Application;
- it owns, or is licensed to use the Material and other content or otherwise have the right to place the content on the Website or Application;
- it will conduct such tests and computer virus scanning as may be reasonably necessary to ensure all data and content uploaded by THE CUSTOMER onto, or downloaded by THE CUSTOMER from, THE COMPANY’s web server does not contain any computer virus and will not in any way corrupt or otherwise interfere with the data or systems of another person;
- the content and data on the Website or Client part of the Application will not infringe any person’s Personal Information;
- it will notify THE COMPANY of any Material of Users contained on the Website or Application or any other sites created by Users that are incidental to the Website or Application which infringe the rights of a third person, upon becoming aware of such infringement;
- it is solely responsible for dealing with persons that access THE CUSTOMER’s data and content, and must not refer complaints or enquiries in relation to THE CUSTOMER data and content to Superb Learning
- it will keep secure any password used to access servers, the Website or any control panel relating to the Services.
PART E – SUPPORT SERVICES
This Part E applies if Superb Learning is to provide Support Services to THE CUSTOMER.
21. Support Services
Support Services are available via the Web Ticketing System provided by THE COMPANY. Time spent by THE COMPANY attending to THE CUSTOMER’s web tickets is logged in 15 minute increments.
Superb Learning will make reasonable endeavours to ensure that 75% of first contacts made on Business days between 0900-1700h AEST are responded to within 24 Hours and all first contacts are responded to within 3 Business days. THE COMPANY will endeavour to resolve
all contacts within 7 days of receipt of the first contact. Failure to meet these standards does not amount to a material breach of this Agreement.
If an issue remains unresolved for more than 30 days, THE CUSTOMER may request from Superb Learning written reasoning as to why the issue has not been resolved.
THE CUSTOMER authorises Superb Learning to provide Support Services via remote access.
THE CUSTOMER must provide to Superb Learning, and maintain at THE CUSTOMER’s expense, an Internet connection to enable Superb Learning to provide the Support Services remotely.
THE CUSTOMER must ensure, where relevant, THE COMPANY’s maintenance personnel have full and safe access to the IT Environment at all reasonable times for the purpose of providing the Support Services
THE CUSTOMER must also ensure that Superb Learning’s maintenance personnel are provided with all information, facilities, and assistance reasonably required by Superb Learning to enable Superb Learning to provide the requested Support Services.
Support plan time is valid for 12 months from the date of purchase or commencement if included as part of hosting or other services to THE CUSTOMER. Unused support time expires 12 months from the date of purchase or commencement and is forfeited by THE CUSTOMER.
Superb Learning is not obligated to offer support for unused time beyond the expiry date.
Without limiting any exclusions detailed in the Statement of Work, the Support Services do not include:
- any support or service in relation to software or hardware specifically excluded in the signed proposal;
- correction of errors or defects caused by the operation of the IT Environment in a manner other than that currently specified by the relevant software or hardware vendor / owner;
- correction of errors or defects caused by the modification, revision, variation, translation or alteration of software or hardware not authorised by Superb Learning or the relevant owner / vendor;
- correction of errors or defects caused by the use of the IT Environment by a person not authorised by THE CUSTOMER;
- correction of errors caused in whole or in part by the use of computer programs other than the software comprised in the IT Environment;
- training of operating or programming staff;
- rectification of errors caused by incorrect use of the IT Environment;
- diagnosis or rectification of faults not associated with the IT Environment;
- correction of errors or defects arising directly or indirectly out of THE CUSTOMER’s failure to comply with this Agreement or any other Agreement with THE COMPANY or the relevant software or hardware owner / vendor;
- correction of errors or defects which are the subject of a warranty under another Agreement; or
- unless otherwise agreed in writing by THE COMPANY, the provision and installation of updates and new releases of software ulterior to this Agreement.