Terms & Conditions
PIVOT PROFESSIONAL LEARNING – TERMS AND CONDITIONS
Last updated: 18 October 2022
1.1 When you accept a Quote and/or make payment of the Fees set out in such Quote, an agreement is formed between the school set out in the Quote (the School, You, Your) and Pivot Professional Learning Pty Ltd (ACN 601 883 372) (Pivot, we, us, our) consisting of the Quote and these terms and conditions (Agreement).
2. PROVISION OF SERVICES
2.1 Term and renewal
(a) This Agreement starts on the Start Date and continues for the Initial Service Period, subject to the remainder of this clause and unless otherwise terminated in accordance with this Agreement.
(b) We reserve the right to withhold Your access to the Services until we receive full payment of the Fees owed for the applicable Services Period.
(c) Before the expiry of the Initial Service Period or a Renewal Service Period (as applicable), we will provide you with:
(i) 2 written notices reminding you of the upcoming renewal of your service period (each a Renewal Service Period); and
(ii) an updated Quote setting out the relevant details for the upcoming Renewal Service Period, that will be based on your immediately preceding Quote (subject to any variations to our Fees for the upcoming Renewal Service Period).
(d) Where you accept the Quote and pay us the Fees, this Agreement will be renewed for the applicable Renewal Service Period. Where you have not accepted the Quote and/or paid the Fees within 90 days of the date of the Quote, we reserve the right to:
(i) suspend your access to the Services until you have paid the applicable Fees; and/or (ii) terminate this Agreement immediately on written notice to you.
(a) The School appoints, and Pivot agrees to provide, the Services during the Service Period for the Fees on the terms and conditions set out in this Agreement.
(b) Pivot will provide the Services with all due care, skill and diligence and will ensure that the Services are provided by appropriately trained and experienced personnel.
(c) Pivot may provide services similar to the Services to other schools or persons anywhere in the world.
(d) You acknowledge that the level of functionality of the Pivot Platform (and corresponding Fees) may depend upon the type of Pivot Products and/or Services You have purchased.
(e) You acknowledge that our Services, as well as our Pivot Platform and Pivot Products are tools to track student well-being and are not medical or psychological diagnostic tools or treatment tools in respect of mental health. Pivot in no way represents that our Services, well as our Pivot Platform and Pivot Products are fit for the purpose of monitoring or treating mental health conditions.
3.1 Payment of Fees
(a) In consideration of us providing the Services to You, You agree to pay the Fees (if any) in accordance with the Payment Terms.
(b) You acknowledge that:
(i) fees are calculated on a per User basis and on the Number of Users;
(ii) user logins are not transferable between Users;
(iii) if You request User accounts in addition to the Number of Users, You agree to pay the applicable Fees for additional User accounts created for You in the Services Period.
(a) All Fees (if any) are exclusive of Australian GST unless stated otherwise.
(b) Both parties acknowledge that if goods and services tax (GST) applies to a taxable supply made under this Agreement the party to which the taxable supply is made must pay GST on that taxable supply, in addition to any consideration (excluding GST) that is payable for that taxable supply. It must do so at the same time and in the same way as it is required to pay the consideration for the taxable supply.
3.3 Default in Payment
If You do not make any payment when due in accordance with the Payment Terms then You agree to pay interest on any amount unpaid at a rate of 1.0% per month, compounding monthly. We will issue You an invoice for default interest in accordance with the Payment Terms.
3.4 Refunds and credits
Your Fees are payable for the applicable Service Period irrespective of whether You actively engage with, or use, the Pivot Platform and/or Pivot Products that you have purchased from us during the Service Period. To the extent permitted by law, we do not offer refunds or rollover of your Fees between applicable Service Periods.
4. YOUR OPERATIONAL OBLIGATIONS
4.1 General obligations
You must, and must ensure that your Users and Personnel:
(a) only use the Services including all or any part of any web pages, or corresponding code, provided to you in the course of the Services for the benefit of the School and Users, and not provide or resell the Services (or any part of them) to any person, whether or not as part of any other service;
(b) not use the Services, or permit the Services to be used, directly or indirectly, in any way that:
(i) commits, or encourages or causes to be committed by any person, any offence or unlawful act or omission;
(ii) is racist, hateful, violent, defamatory, harassing, abusive, threatening, malicious, inflammatory or otherwise objectionable; or
(iii) is fraudulent, false, misleading or deceptive;
(c) not do or permit to be done, any act which could damage our reputation or the reputation of the Services (or any other service provided to any person by us); and
(d) respect all copyright notices, not infringe our Intellectual Property Rights in relation to the Services and not reverse engineer the Services to produce competitive products, except to the extent that doing so is expressly permitted by law and any right to do so cannot be excluded.
4.2 User Guidelines
You must, and must ensure Your Personnel and Users, comply with any User Guidelines, and all reasonable directions from us, in relation to the Services.
4.3 School Environment
The School is responsible for the School Environment and must ensure that the School Environment is secure, free from unauthorised access and accessible to all authorised users.
5. CONFIDENTIAL INFORMATION, INTELLECTUAL PROPERTY, AND DATA
5.1 Obligation of confidentiality
Each party to this Agreement and their Personnel must keep confidential all Confidential Information of the other party and use the other party’s Confidential Information only for the purposes of this Agreement.
Clause 5.1does not apply:
(a) to any information that enters the public domain other than by breach of this Agreement; or
(b) is required by law to be disclosed, provided that the disclosing party uses reasonable efforts to protect the confidentiality of such information.
5.3 Ownership remains with Pivot
Pivot owns or licenses all Intellectual Property Rights in the Services, including the Pivot Platform and all Pivot Products and nothing in this Agreement transfers ownership to of any of those things to You.
5.4 Ownership and delivery of Platform Usage Data
(a) We agree to send You the Platform Usage Data and any applicable Deliverables to the email address specified in the Schedule (Reporting Email).
(b) It is Your responsibility to monitor any Platform Usage Data sent to the Reporting Email and You acknowledge that Pivot will not send any specific notifications or alerts in respect of any Platform Usage Data.
(c) It is solely Your responsibility to ensure that the Reporting Email is secure and that proper confidentiality and security protocols are in place to protect the integrity of any Platform Usage Data. Pivot will not be responsible for any breaches of confidentiality or privacy arising out of Your use and management of the Reporting Email.
(d) You agree that we may retain and use all Platform Usage Data for research, analysis and
development purposes provided that we do not disclose any Confidential Information to any third party, except where permitted in accordance with clause 5.2or on an aggregated or de-identified basis.
(e) Without limiting our obligations of confidentiality above:
(i) You acknowledge that some Platform Usage Data may be collected by us on the basis that it will only be disclosed in a confidential, anonymised aggregated and deidentified manner;
(ii) You agree that in no circumstances will we be obliged to provide such Platform Usage Data to You other than as is provided to You by way of Your use of the Services;
(iii) we own all rights, including Intellectual Property Rights, in and to the Deliverables (including the Platform Usage Data; and
(iv) to the extent that You own any rights, including Intellectual Property Rights, in and to any Deliverables (including any Platform Usage Data), you assign to us all such rights, including Intellectual Property Rights, immediately upon creation.
(f) We grant You a royalty-free, revocable, non-exclusive licence to:
(i) access and use the Pivot Platform in accordance with your Quote;
(ii) access and use and distribute the Deliverables for the Service Period for the:
(A) internal benefit of the School only and not for any commercial use; and
(B) benefit of Your Users or Personnel,
(g) You acknowledge and agree that You remain responsible for Your own compliance with all legal and statutory obligations arising out of or in respect of the Deliverables including any obligations of mandatory reporting. In providing the Deliverables to You, Pivot does not in any way assume any responsibility in respect of Your legal and statutory obligations (including reporting).
5.5 Privacy Compliance
(a) Each party (the Responsible Party) warrants to the other that it will, in respect of any Personal Information under this Agreement, including as forming part of any Platform Usage Data held, used or accessed by the Responsible Party:
(iv) protect all Personal Information and Platform Usage Data from misuse, interference, loss, unauthorized access, modification or disclosure.
(d) Some of our Services may involve You passing through requests to us from parents/students interacting with our Services on Your behalf, after which we may interact directly with such parents/students to resolve such requests. In such instances, and in any instance in which you collect and disclose Personal Information to us under this Agreement or in the course of us providing you with the Services, you must, and you warrant that you will:
(i) obtain all necessary consents, and make all necessary disclosures, to enable the collection and disclosure of such Personal Information to us for our use in providing our Services and to enable us to interact directly with the relevant individual(s); and
(ii) verify the:
(A) identity; and
(B) authorisation, of any individual that submits a request to you prior to passing on that request to us.
6.1 Creation and revocation of Logins
(a) We will issue a single user ID and URL link to You and You agree to distribute the URL link to the relevant Users for their use of our Services (Access Link).
(b) You acknowledge that the Access Link will expire from time to time and we will provide you with a replacement Access Link as necessary. It is Your responsibility to ensure that Users are provided with any updated Access Link.
(c) Access to the Reporting Email will be via username log in and password. Authorised Users will be able to obtain and change password by using the email address You allocate to them. Security of the email accounts of Authorised Users is Your responsibility.
(d) We are not liable for any unauthorised use of the Services including responding to any unauthorised instructions and requests for information submitted to us through the use of one of Your logins, whether that request was done fraudulently or without authority.
6.2 Security of Logins
You must, and must ensure that Your Users:
(a) keep all Login information secure at all times, including by not recording them in any form (electronic or otherwise) in clear text, except where recording the Login is strictly necessary, in which case it must not be identified as a user ID or password, but must instead be concealed or coded such that someone finding the record is unable to use the recorded password directly – e.g. by adding dummy characters, or embedding them in long strings of characters and numbers); and
(b) notify us immediately upon becoming aware that a Login may be lost or stolen or becoming aware or suspecting that another person knows it, or has used it, without Your authority.
7. WARRANTIES AND LIABILITY
7.1 Exclusion of other terms
We will provide the Services with due care and skill. Otherwise, to the extent permitted by law, and except as expressly provided in this Agreement, all terms, conditions, warranties and representations (in each case whether express, implied, statutory or otherwise) relating in any way to the Services or this Agreement are excluded. To the fullest extent permitted by law:
(a) we do not promise that the Services will be continuous or fault free;
(b) we exclude all liability in relation to any fault or failure in the supply of the Services involving any act, omission or event outside our reasonable control, including any equipment failure, power failure, fire, flood, water, labour dispute or shortage, utility curtailment, explosion, emergency, civil disturbance, war, act of God, governmental action or act or omission of any Supplier or other person. If we become aware of any such fault or failure, then we will use reasonable endeavours to address it; and
(c) we provide the Services on an as is basis and take no responsibility for the welfare or well-being of You, any User or Personnel whilst they use the Services or following their use of the Services.
7.2 General limitation of liability
If any supply by us pursuant to this agreement comprises a supply to a ‘consumer’ as defined in the Australian Consumer Law, then nothing contained in this Agreement restricts or modifies guarantee, right or remedy which pursuant to the Australian Consumer Law applies to this Agreement or is conferred on you, provided that to the extent that the Australian Consumer Law permits the use to limit our liability for breach of guarantee imposed by the Australian Consumer Law, then to the extent permitted by the Australian Consumer Law, our liability for such breach is limited to, the case of services, any cost of the following as determined by us:
(a) the supplying of the services again; or
(b) the payment of the cost of having the services supplied again.
Notwithstanding any other provision of this Agreement (including clause 7.3) and to the fullest extent permitted by law, our aggregate liability in connection with this Agreement whether in contract, tort (including negligence), statute or otherwise will not exceed an amount equal to the Fees paid by You to us in the 12 months preceding any claim.
7.3 Exclusion of categories of loss
The following applies only to the extent permitted by law. Our liability is excluded in respect of any indirect or Consequential Loss suffered or incurred by you, in relation to:
(a) the Services;
(b) any delay or failure in providing the Services; or
(c) otherwise under or in connection with this Agreement,
and in any event, including where amounting to a direct Loss, for any lost or corrupted data.
You agree to continually indemnify Pivot against any Loss incurred or suffered by Pivot arising from or in connection with:
(a) an infringement of Pivot’s Intellectual Property Rights or any other person Intellectual Property Rights or privacy; and/or
(b) any fraud, unlawful conduct or wilful misconduct by You or Your Personnel; and/or
(c) a breach of clause 5.5 by You and/or Your Personnel.
8. TERMINATION AND SUSPENSION
8.1 Termination or suspension for cause
(a) We may cease delivering the Services to You by giving You no less than ten (10) days written notice.
(b) Either party may terminate this Agreement if:
(i) the other party breaches any of its material obligations (other than an obligation to make a payment), or any warranty, under this Agreement and does not remedy that breach within 10 days of receiving notification of the breach; or
(ii) the other party experiences an Insolvency Event.
(c) We may terminate this Agreement or suspend or alter any or all of the Services with immediate effect by written notice to you if you fail to make any payment when due under this Agreement.
8.2 Effect of termination or suspension
(a) On termination of this Agreement, You must pay any Fees outstanding up to the date of termination.
(b) You acknowledge that You will have no right to a refund of any Fees upon termination, or in relation to any period of suspension (or alteration) of the provision of the Services to You, except to the extent (if any) that the law requires otherwise.
(c) The termination of this Agreement will not affect the accrued rights of either party as at the date of termination.
(d) Clauses, 5, 7, 8, 9, 10, and 11 will survive the termination of this Agreement, as will any other provision that by its nature is intended to survive termination.
8.3 Recovery of content
If this Agreement is terminated or it expires, then for a period not exceeding 90 days from the date of termination or expiry we will provide a means by which You and your Users may download the Deliverables.
(a) Any notice or other written communication given under or in connection with this Agreement by either party to the other must be sent by ordinary prepaid mail or email to the corresponding address below, unless either party notifies the other of a change of the relevant address.
You: As set out in your Quote.
Pivot Professional Learning Pty Ltd
Suite 1A, 59 Fletcher Street
(b) Each party must ensure that at all times the contact details (including email addresses) applicable to that party under this clause is current, and endeavour to ensure it is operational.
(c) An email will be taken to have been served at the time of sending, unless within 24 hours of it being sent the sender receives a manual or automated response indicating that it was not delivered successfully.
10.1 Applicable law
This Agreement is to be construed according to, and is governed by, the laws of Victoria, Australia. You and we submit to the non-exclusive jurisdiction of the courts in and of Victoria in relation to any dispute arising under this Agreement.
10.2 Assignment and subcontracting
You may not transfer or assign Your rights or obligations under this Agreement to any other person. We may subcontract our obligations under this Agreement.
10.3 Relationship of parties
(a) Pivot is an independent contractor of the School.
(b) This Agreement is not intended to create, nor will it be construed as creating, a partnership or joint venture between the parties.
If any provision of this Agreement or its application to any person or circumstance is or becomes invalid, illegal or unenforceable then the provision will so far as possible be read down to the minimum extent necessary to ensure that it is not. If any provision or part of it cannot be so read down, then the provision or part of it will be deemed to be void and severable and the remaining provisions of this Agreement will not be affected or impaired in any way.
Any failure by any party to exercise any right under this Agreement does not operate as a waiver and the single or partial exercise of any right by that party does not preclude any other or further exercise of that or
any other right by that party.
We may vary these terms and conditions by giving you notice via email as follows.
(a) Where the variation relates to or impacts:
(i) your ability to access to and use the Services; and/or
(ii) either party’s warranties and liabilities under this agreement,
we will provide you with 14 days’ notice prior to such change taking effect.
(b) All other changes will be effective from the date of notification.
(c) If you object to these terms and conditions, you may terminate this Agreement and such termination will be effective at the end of your then current Services Period. However, the terms and conditions will not be varied, and the then current terms and conditions terms will remain applicable until such effective date of termination.
(d) Subject to clause 10.6 (c), Your continued use of the Services after the relevant effective date of notification will constitute acceptance of the amended terms and conditions.
(e) The date set out at the start of these terms and conditions will reflect the date that they were last updated.
10.7 Entire Agreement
This Agreement constitutes the entire agreement between us and You in relation to its subject matter. Any prior arrangements, agreements, representations or undertakings are superseded and, except as expressly provided, each party warrants that it has not relied on any arrangement, agreement, representation or understanding which is not expressly set out in this Agreement or incorporated by reference.
10.8 Dispute Resolution
(f) Any dispute or difference (“Dispute”) under this Agreement may be notified by a party to the other party and the parties shall:
(i) firstly, meet to negotiate, in good faith, resolution of the Dispute; and
(ii) secondly, if negotiation fails to achieve a resolution of the Dispute within 10 working days of the notification of the Dispute, attend mediation, administered in accordance with procedures as set out by the Institute of Arbitrators and Mediators Australia.
(g) Any dispute or difference whatsoever arising out of or in connection with this contract shall be and is hereby submitted to arbitration in accordance with, and subject to, the UNCITRAL Arbitration Rules. The appointing and administering body shall be The Institute of Arbitrators and Mediators Australia (IAMA). There shall be one arbitrator, the language of the arbitration shall be English, and the place of arbitration shall be Melbourne.
11. DEFINITIONS AND INTERPRETATION
In this Agreement the following terms have the corresponding meaning:
Additional Consulting Services means any consulting services requested by You, and that we agree to provide to You, from time to time under this Agreement, in addition to the Initial Consulting Services.
Agreement has the meaning given to that term in clause 1.
Australian Consumer Law means the provisions of Schedule 2 to the Competition and Consumer Act 2010 (Cth), as applied under Part XI or under a law of a State or Territory.
Authorised User means any User nominated by You to have access to the Reporting Email.
Confidential Information of a party to this Agreement means all information of a confidential nature of or relating to that party, including anything which is indicated to be subject to an obligation of confidence which is disclosed by that party to the other party in relation to this Agreement, or that comes to the knowledge or into the possession of the other party in connection with this Agreement. Confidential Information of ours includes the terms of this Agreement and any information relating to our business, affairs, customers, products, intended developments, trade secrets, know-how, pricing structures or the Services.
Consequential Loss means any Loss that does not arise naturally in the ordinary course of things from the event or circumstance giving rise to the Loss.
Deliverables means all data, reports, student responses and other information or results that we provide to You, Users, or Your Personnel, through or in connection with the Services, including any Platform Usage Data that we make available to You.
Fees means the fees (if any), charges, interest and other amounts described or referred to in this Agreement or the Quote (including as reissued for a Renewal Service Period in accordance with clause 2.1),.
GST has the meaning it has in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Initial Consulting Services means the initial consulting services we agree to provide to You, as described in the Quote.
Initial Service Period means the initial service period set out in your Quote.
Insolvency Event means, in respect of a party: (a) the party is placed under official management, administration, bankruptcy, liquidation or provisional liquidation; or (b) a receiver or receiver and manager or other controller is appointed over a party’s undertaking or property or any part of it.
Intellectual Property Rights means any intellectual property right whether registered or unregistered and including, without limitation, any patent, design right, invention, copyright, trademark, moral right, right to use any image, voice or likeness or other right whether arising under statute or at common law.
Loss means any loss, damage, cost, interest, expense, fee, penalty, fine, forfeiture, assessment, demand, action, suit, claim, proceeding, cause of action, liability or damages incurred by a person, and includes legal costs on an indemnity basis and indirect or consequential losses.
Number of Users means the number of Users set out on Your Quote and/or as otherwise agreed in writing with us from time to time in accordance with clause 3.1(b).
Payment Terms means the payment terms set out in Your Quote, or if none are set out mean 14 days from the date of invoice.
Personal Information has the meaning given to that term in applicable Privacy Laws.
Personnel means Your teachers and other employees and representatives, students at the School and their parents or guardians (as applicable).
Pivot (or us, we, or our) means Pivot Professional Learning Pty Ltd (ACN 601 883 372), as defined in clause 1. Pivot Products means the products and programs that we make available via the Platform.
Platform means the Pivot survey and feedback platform that we own and operate and through which you can access our Pivot Programs.
Platform Usage Data means any data (including student’s responses) and other information that You, Users, or Your Personnel provide to us, and/or is generated, through or in connection with the Services.
Privacy Law(s) means the Privacy Act 1988 (Cth) (as amended) including the Australian Privacy Principles contained in that Act and/or any other laws, codes and regulations applicable to Personal Information dealt with under this Agreement.
Renewal Service Period has the meaning given to that term in clause 2.1
Quote means the document agreed between You and us which sets out the details of your use of the Pivot Platform, including the Pivot Products you have purchased access to, Your Fees, Number of Users and Initial Service Period.
School means the School set out in the Quote, as defined in clause 1.
School Environment means the information technology networks, systems, equipment, programs, and premises occupied and/or maintained by the School.
Service Period means the Initial Service Period and/or an applicable Renewal Service Period, as the context requires.
Services means the provision of our Platform and associated Pivot Products to you, as well as any Initial Consulting Services (if any), Additional Consulting Services (if any) and any other incidental services that we provide to You in connection with the Platform or this Agreement generally.
Start Date means the date set out in your Quote.
Supplier means any person from whom we purchase any services in connection with the supply of any of the Services.
User means a user of the Pivot Platform under this Agreement, identified by a login and password.
User Guidelines means instructions and guidelines provided or published by us from time to time in relation to the Services and their use by Users.
You/Your means the School.
10.2 Rules of interpretation
In this Agreement:
(a) Headings. Headings will be ignored in construing this document.
(b) Inclusive Terms. Use of inclusive terms such as “includes” or “including” will be read as “includes, without limitation” or “including, without limitation”.
(c) Numbers. Words importing the singular include the plural and vice versa.
(d) Persons. References to persons include corporations.
(e) Writing. References to writing include any mode of representing or reproducing words in a visible form, and include email transmissions and electronic messaging.