Terms of Use

Supply Terms
PeopleBench Platform

Last modified: November 2022

1. Background

(a) In these Supply Terms, as amended from time to time (this Agreement):

(i) subject to this Agreement, PeopleBench Pty Ltd provides the Platform, e-Learning Courses and/or Services (as applicable) to you via our Website;
(ii) you have entered into a contract with PeopleBench Pty Ltd ACN 623 119 620 of Suite 17, Level 1, 88 Tribune Street, South Brisbane, 4101, Queensland, Australia; and
(iii) for purposes of this Agreement, “PeopleBench”, “we”, “us”, “our” and other similar terms, means the party with whom you are contracting and its affiliates. To avoid doubt, PeopleBench Pty Ltd may apply and exercise its rights pursuant to this Agreement on behalf of the party that you are contracting with.

(b) We have agreed to grant you access to the Platform and/or to provide you with the Services on the terms set out in this Agreement.

2. Acceptance

(a) By accessing, Using and/or receiving any part of the Platform and/or Services, you acknowledge and agree that you:

(i) have had an opportunity to read this Agreement;
(ii) understand this Agreement; and
(iii) are legally bound by the provisions of this Agreement.

(b) If you do not agree to clause 2(a), you (and your Authorised Users, if applicable) cannot proceed to access, use and/or receive any part of the PB Suite in any way.

(i) they are duly authorised to accept this Agreement and to bind you to this Agreement; and
(ii) to the extent they purport to accept this Agreement on your behalf and are not duly authorised to do so, that person will be liable in their personal capacity and will indemnify us against any loss, damage, expense or cost suffered as a result of such purported acceptance.

3. Term of Agreement

3.1 Initial Term

This Agreement commences on the Acceptance Date and continues for 12 calendar months or, if there is a Proposal, such term as specified in that Proposal (Initial Term).

3.2 Continuation of Agreement

This Agreement will continue after the Initial Term for each Rollover Period, unless terminated in accordance with clause 11 (Term).

4. Supply

4.1 Platform Licence

If you have selected to access and/or use the Platform, the following applies:

(a) Subject to clause 4.1(b), we grant you and your Authorised Users with access to the Platform (including any applicable Feature(s), but excepting the Reports which are licenced under clause 4.2) on a worldwide, revocable, non-exclusive, sublicensable and non-transferable basis during the Term (Licence).

(b) The Licence is provided on the following conditions:

(i) you must and must procure that all your Authorised Users:

(A) only Use the Platform in accordance with the stipulations of this Agreement;
(B) only Use the Platform in the manner intended, as set out in the User Documentation;
(C) comply with all reasonable and lawful directions that we may give from time to time with respect to your Use (or the Use of your Authorised Users) of the Platform;
(D) only Use the Platform for your own internal purposes relating to:

1) benchmarking in respect of the:

a. Characteristics;
b. Employee Metrics;
c. Outcomes; and/or

2) development of workforce plans and strategy documents, of Schools/Districts within Australia, the United Kingdom and the United States of America (Region);

(E) protect all our Intellectual Property Rights in the Platform (including the User Documentation and Reports) from unauthorised access, use or damage;
(F) maintain the security of:

1) account log in information; and
2) all Data (including Your Data); and

(ii) cooperate with us in remediation of any security breach, unauthorised use or misuse of the Platform and/or Services and promptly report all such matters that you become aware of to us; and

(iii) you must not:

(A) be involved in any business activity that is unlawful or that we reasonably consider would be likely to adversely impact upon our reputation;

(B) allow or engage any third party to conduct development work on the Platform without first obtaining our written consent, which we may withhold in our sole discretion;

(D) grant access to the Platform to anyone other than Authorised Users, unless we provide you with our express prior written consent; and

(E) subject to any right under, sections 47B(3), 47C, 47D, 47E or 47F of the Copyright Act, either directly or indirectly, modify, attempt to decompile, cross compile, disassemble, reverse engineer, or use any other means to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Platform, and/or the Services.

4.2 Report Licence

We grant you and your Authorised Users a worldwide, revocable, non-exclusive, non-sublicensable and non-transferable licence to use the Reports strictly for the purpose set out in clause 4.1(b)(i)(D) for the Term.

4.3 Services

We will provide the Services to you in a professional manner with due care, skill and diligence.

4.4 Data Assistance

(a) If you require assistance with collecting, sorting, cleansing and presenting your School Data in a manner that conforms with our Data Requirements (Data Assistance), please provide us with Notice.

(b) Following receipt of your Notice under clause 4.4(a), we will contact you to determine the extent of Data Assistance required. Once the anticipated steps have been determined by us, we will provide you with an indication of the time and steps that we expect to be required.

(c) Where the level of Data Assistance required by you exceeds the usual level offered by us to new subscribers, we may charge you at our then prevailing hourly rates for work we undertake that is in excess of a normal range which we will set out. All specific expenses incurred by us in relation to our provision of Data Assistance including travel, accommodation and Personnel travel time will also be payable by you in accordance with clause 8.2.

4.5 Features

We will provide you with a list of available Features and an indication of the cost of activating them upon receipt of Notice from you. If you purchase a Feature you are granted a licence to it on the terms contained in clause 4.1.

4.6 Updates

(a) From time to time we may update the Platform resulting in New Services. Where practicable, we will provide you with Notice of those New Services. Once the Platform has been updated, the provision of the New Services will be governed by the terms of this Agreement.

(b) We may from time to time unilaterally make modifications to the Services and/or Platform and will endeavour to provide Notice of any changes made, prior to the changes taking effect.

(c) As a consequence of New Service offerings and/or modifications, contemplated in clauses 4.6(a) and 4.6(b), we may need to vary this Agreement. We reserve the right to unilaterally make such changes pursuant to clause 14.4.

4.7 Training and User Documentation

(a) We provide User Documentation with information to enable you and your Authorised Users to make Use the Platform and/or Services.

(b) If you require additional training for any of your Authorised Users, please provide us with Notice. Following receipt of your Notice, we will contact you to arrange a mutually acceptable time to provide the additional training.

(c) All additional training will be charged at our then prevailing hourly rates. All specific expenses incurred by us in relation to our provision of additional on-site training including travel, accommodation and Personnel travel time will also be payable by you in accordance with clause 8.2.

4.8 Support

(a) We will endeavours to provide Support Services to you within 1 business day of a request being made. Support Services provided under this Agreement do not include any dealing with or responding to issues related to your Systems.

(b) You may at any time request that we provide additional maintenance, software support and training services (Additional Support Services). The fees for Additional Support Services will be set out by us upon receipt of Notice from you.

4.9 Back-ups

(a) Under our agreement with our Host, our Host endeavours to conduct backups of all Data on at least a daily basis. Notwithstanding this, you acknowledge and agree that we (nor the Host) are not responsible for conducting back-ups of Your Data.

(b) You are solely responsible for your conducting back-ups of Your Data. We recommend that you conduct your own daily backups of all Your Data, a copy of which you may wish to store locally on your own servers.

4.10 Development

(a) If you would like us to develop New Services, third party integrations or a tailored variation to the Platform code (Development), we may in our sole discretion agree to do so.

(b) Any Development that you engage us to complete will be an additional cost and will be governed by a separate agreement.

(c) You acknowledge and agree that all Intellectual Property Rights in the variations, additions and alterations (Improvements) to the Platform and the Services are owned by us, even if suggested or created by you or by any of your Representatives. You hereby assign to us any and all Intellectual Property Rights in such Improvements suggested or created by you, and will promptly sign any documents we reasonably require in relation to such assignment.

4.11 e-Learning Services

If you have selected to access and/or use the e-Learning Services, the following applies:

(a) Subject to clause 4.11(b), we grant you access to the e-Learning Services on a worldwide, revocable, non-exclusive, non-sublicensable and non-transferable basis during the Term (e-Learning Licence).

(b) The e-Learning Licence is provided on the following conditions:

(i) you must:

(A) only Use the e-Learning Services in accordance with the stipulations of this Agreement;

(B) only Use the e-Learning Services in the manner intended, as set out in any terms and conditions of use of such e-Learning Services, including in any further course-specific terms and conditions from us, and/or, any terms and conditions you are required to enter into with any provider of any Third Party Platform you utilise to access the e-Learning Services, both of which are incorporated into this Agreement by reference as per clause 14.7;

(C) comply with all reasonable and lawful directions that we may give from time to time with respect to your Use of the e-Learning Services;

(D) only Use the e-Learning Services for your own internal education purposes;

(E) protect all our Intellectual Property Rights in the e-Learning Services from unauthorised access, use or damage;

(F) maintain the security of:

3) your account log in information; and
4) any Data (as applicable); and

(ii) cooperate with us in remediation of any security breach, unauthorised use or misuse of the e-Learning Services and promptly report all such matters that you become aware of to us; and

(iii) you must not:

(A) be involved in any business activity that is unlawful or that we reasonably consider would be likely to adversely impact upon our reputation;

(B) allow or engage any third party to conduct development work on the e-Learning Services without first obtaining our written consent, which we may withhold in our sole discretion;

(D) grant access to any or all of the e-Learning Services to anyone other than yourself, unless we provide you with our express prior written consent; and

(iv) In this clause 4.10, if “you” are an entity other than a natural person, the obligations on “you” in this clause apply to you, and you ensuring that your Authorised Users also comply with such obligations.

5. Client Responsibilities

5.1 Account establishment

(a) You are responsible for ensuring:

(i) all Your Data complies with our Data Requirements and that it is Uploaded to the Platform; and

(ii) regardless of who grants authorisations, everyone that is or is intended to be an Authorised User has the correct in-Platform authorisations and that they have their own user account (Account Establishment).

(b) You acknowledge and agree that the Platform and/or Services provided by us require proper Account Establishment. If this does not occur:

(i) the Platform and/or Services may not be able to be provided, or if they are provided, the Platform and/or Service deliverables may be adversely affected; and

(ii) your Authorised Users may be required to re-establish their accounts before the Platform and/or Services are provided; and

(iii) we will not be liable to you for any Loss suffered due to the Platform and/or Services not being provided or the Platform and/or Service deliverables being adversely affected.

5.2 Your Data & Raw Data

(a) Title to Your Data remains with you in all respects and we do not obtain ownership of any Intellectual Property Rights in it. You grant us an irrevocable, perpetual, world-wide, sub-licensable, royalty free licence to Your Data to enable:

(i) the Platform to receive and process it;

(ii) us to use it for our own analysis and/or research including the creation of Reports and delivery of the Services; and

(iii) our Host to store it,

and/or for any purpose related to our Rights or Obligations under this Agreement.

(b) Your Data will only be identifiable within the Platform to you via your account.
(c) Title to any Raw Data remains with us in all respects and you do not obtain ownership of any Intellectual Property Rights in it.
(d) This clause 5.2 survives the expiry or termination of this Agreement.

5.3 Systems

You are solely responsible for obtaining and maintaining all your Systems.

5.4 Your warranties

You represent, warrant and undertake that:

(a) Your Data is accurate, complete and conforms with our Data Requirements prior to being Uploaded;

(b) you own or have an unrestricted right and licence to collect, use and store all Your Data that is Uploaded by you or on your behalf;

(d) our use of Your Data for the purposes contemplated under or in connection with this Agreement and the licensing of Your Data to us under clause 5.2 will not cause you or us to breach any applicable privacy Laws;

(e) our collection, storage and use of any Raw Data for purposes contemplated under or in connection with this Agreement and in the generation of any of Your Data will not cause you or us to breach any applicable privacy Laws;

(f) you have the capacity and authority to enter into and to perform this Agreement; and

(g) this Agreement is accepted by a duly authorised legal representative of yours and legally binds you.

5.5 Your acknowledgements

You acknowledge and agree that:

(a) computer and telecommunications services are not fault free and occasional periods of downtime or delays in relation to the Platform and/or Services may occur;

(b) we may publish your branding and testimonials on any of our promotional material for the purpose of representing that you are a client of ours, provided we comply with our confidentiality obligations contained in clause 10; and

(c) in addition to any other rights or remedies we may have, we may suspend or terminate any Authorised User’s access to the Platform and/or the Services at any time and without any liability to you in the event that we are reasonably of the view that an Authorised User breaches any provision of this Agreement or any of our Policies.

5.6 Admission and Health, safety and environment (HSE)

(a) You must allow us admission to any of your facilities and Systems where reasonably required for us to provide access to the Platform and/or perform the Services.

(b) Where we are allowed admission to any of your facilities, you must:

(i) ensure that our Personnel are appropriately inducted, trained and supervised in relation to:

(A) HSE risks associated with the provision of Services when on site; and

(B) procedures required to manage the risks set out in clause 5.6(b)(i)(A); and

(ii) promptly notify us of any HSE incidents that occur whilst any of our Personnel are providing Services at any of your facilities.

6. Our responsibilities

6.1 General

We will:

(a) comply with the Privacy Act 1988 (Cth) and any other applicable privacy Laws in relation to Your Data and any Raw Data;

(b) endeavour to provide you and your Authorised Users with notice of scheduled maintenance to the Platform that may impact the Use of the Platform and/or receipt of the Services;

(d) facilitate the storage and hosting of all Your Data and any Raw Data with our Host; and

(e) ensure that the Platform and Services will be provided in accordance with:

(i) this Agreement; and

(ii) applicable Laws.

6.2 Data

When processing any of Your Data or Raw Data, we must:

(a) ensure it is stored by our Host on your behalf in the country where Your Data or any Raw Data originates;

(b) treat Your Data and any Raw Data as Confidential Information;

(c) implement, maintain and enforce appropriate and industry best practice technical and organisational measures to protect Your Data and any Raw Data from any misuse, loss, interference unauthorised access, modification or disclosure as further set out in our Data Security Documentation;

(d) subject to any third-party hosting issues, ensure that during the Term you have the ability to access Your Data upon reasonable request;

(e) if any of Your Data is lost, destroyed, corrupted or altered in connection with the provision of the Services, endeavour to provide reasonable assistance to you with restoring that Data;

(f) if any Raw Data is lost, destroyed, corrupted or altered in connection with the provision of the Services, endeavour to restore that Raw Data where practicable; and

(g) notify you if we become aware of any suspected or actual material misuse or loss of, interference with or unauthorised access to, modification of or disclosure of Your Data and/or any Raw Data (a Data Breach) or if we are required by law to disclose any of Your Data and/or any Raw Data for any reason.

7. Intellectual property rights

7.1 General

(a) Each party retains all right, title and interest in and to its pre-existing Intellectual Property Rights, and, other than as expressly provided for in this Agreement, neither party grants the other party any other rights or licences, whether express, implied, or by virtue of estoppel or otherwise to its Intellectual Property Rights.

(b) We own or have a licence to use all Intellectual Property Rights in the Platform (including the Features and the Reports) and the Services in the manner contemplated by this Agreement, and provide the relevant licences to you to access and use our Intellectual Property Rights in accordance with clause 4.

(c) For the avoidance of doubt nothing in this Agreement prohibits us from using our Intellectual Property Rights to enable access to, or provision of, the Platform (including any Features or Reports) and/or any Services to third parties, even if they are the same or substantially the same as those provided to you.

8. Fees, Charges and Payments

8.1 Fees

(a) In consideration of the licence to the Platform we have granted to you and the provision of the Services by us to you, you must pay us the Fees.

(b) Unless otherwise agreed in writing, you will automatically be charged Subscription Fees on the Acceptance Date. Unless this Agreement is terminated pursuant to clause 11, you will automatically be charged Subscription Fees on each anniversary of your Acceptance Date. We will issue a Tax Invoice to your nominated email address upon your Subscription Fee payment being processed.

(c) Where an alternate to automatic payments has been agreed, we will issue a Tax Invoice to you on the Acceptance Date. For each subsequent Rollover Period, Tax Invoices will be issued 14 days prior to the anniversary of the Acceptance Date. Tax Invoices for any Services not covered by the Subscription Fees will be issued to your Financial Officer at the end of each calendar month.

(d) You must pay each Tax Invoice within 14 days of receipt (unless expressly stated otherwise in the invoice itself) without set-off, counterclaim, holding or deduction in the manner detailed on the Tax Invoice.

(e) You acknowledge and agree that we may increase our Fees from time to time. Where we increase our Fees, we will provide you with at least thirty days’ Notice before any subsequent automatic payment is processed, or the date payment is due under our Tax Invoice.

(f) If you do not agree to the increase in Subscription Fees we propose, you may terminate this Agreement as at the effective date of the proposed increase in accordance with clause 11.1.

8.2 Expenses

Any costs and reasonable out-of-pocket expenses which are necessary to provide the Services (Expenses) will be paid or reimbursed by you. We will submit documentation as evidence where required by you to verify the Expense that has been incurred.

8.3 Declined Payment

If you fail to make payment of all amounts due and owing to us in accordance with this Agreement, within the time required, we may:

(a) immediately suspend your and your Authorised Users’ access to the Platform and cease provision of the Services;

(b) charge interest on the overdue amount at the Default Rate as from the first day that payment is overdue to the date we receive payment in full in respect of all overdue amounts;

(d) charge you for all costs and expenses incurred by us in recovering any outstanding Fees or charges, including legal fees (on a solicitor and own client basis) and court costs, which you must pay upon demand.

8.4 Disputed Fee

(a) If you dispute any part of a Tax Invoice you must pay the portion not in dispute and provide Notice to us within 7 days of receiving the Tax Invoice of your reasons for dispute.

(b) Within a reasonable time of receiving the Notice, we will address your reasons of dispute, to enable a prompt and amicable resolution. If the dispute cannot be resolved within 7 days of our response, then the dispute must be referred to the procedure contained in clause 13.

8.5 GST

Unless otherwise expressly stated, all amounts under this Agreement are exclusive of GST. If GST is imposed on any supply made under or in accordance with this engagement and GST has not been accounted for in determining the consideration payable for the supply, then we may recover from you an amount on account of GST.

8.6 e-Learning Services – No refund

To the maximum extent permitted by Law, you acknowledge and agree that:

(a) there is no refund of the whole or any part of the Fee paid in respect of any e-Learning Services once the relevant course has been commenced; and

(b) this Agreement commences on the Acceptance Date, regardless of whether you access the e-Learning Services after that date or not.

9. Representatives

You acknowledge and agree that this clause 9 only applies if you are not a natural person contracting with us in respect of the e-Learning Services.

9.1 Financial Officer

You must:

(a) appoint a Financial Officer and provide us with their full name, email address, phone number, postal address and physical address; and

(b) provide us with reasonable Notice any time your Financial Officer is replaced, or any of their contact details change, which Notice is not more than 7 days after the date such replacement and/or change occurs.

9.2 Authorised Representative

You must:

(a) appoint an Authorised Representative who will be responsible for the oversight of this Agreement, access to the Platform, and receipt of the Services (Representative Purpose);

(b) provide us with the full name, email address, phone number, postal address and physical address of your Authorised Representative;

(c) ensure your Authorised Representative co-operates with any request made by us in respect of anything related to this Agreement; and

(d) provide us with reasonable Notice any time your Authorised Representative is replaced, or their contact details change.

9.3 Authority

You:

(a) covenant that the Financial Officer has management of your internal finances and has authority to make payment of our Tax Invoices;

(b) covenant that the Authorised Representative has full authority to act on your behalf in any way relating to the Representative’s Purpose;

(c) acknowledge and agree that we may rely on any written representation, direction or communication made by the Authorised Representative that relates to the Representative’s Purpose, as if the Authorised Representative were you; and

(d) release and hold us harmless from our reliance upon any such direction or representation made by the Authorised Representative.

10. Confidentiality and restrictions

10.1 Recipient must keep Confidential Information confidential

Each party must:

(a) keep confidential all Confidential Information;

(b) only use Confidential Information for the purpose of providing or receiving (as the case may be) the Services and/or accessing the Platform; and

10.2 Disclosure exceptions

The obligations in clause 10.1 do not apply:

(a) to the extent necessary to enable a party to make any disclosure required by Law; to the extent necessary to enable a party to perform its obligations under this Agreement;

(b) where disclosure is required for any quality assurance or insurance purposes;

(d) where disclosure is required for any insurance purposes;

(e) to any disclosure agreed in writing between the parties; or

(f) in respect of any portion of the Confidential Information which has entered the public domain other than as a result of a breach of this Agreement.

10.3 Restrictions

The Parties undertake to one another to not during this Agreement or for a period of 12 months after it is terminated or expires:

(a) solicit, canvass, induce or encourage any person who was at any time during the term of this Agreement an employee, a director, contractor or agent of the other party to leave the other party’s engagement, employment or agency; or

(b) do anything that would or would be likely to interfere with the relationship between the other party’s clients, customers, contractors, employees, partners or suppliers.

11. Termination

11.1 Termination by Notice

(a) Either party may terminate this Agreement by providing Notice to the other before the expiration of the Initial Term, or the then current Rollover Period.

(b) Termination under clause 11.1(a) will occur at the expiration the Initial Term or the then current Rollover Period.

11.2 Termination for breach

Either party may, without prejudice to its other rights or remedies, terminate this Agreement with immediate effect by Notice to the other Party, in the event of:

(a) any material breach of the Agreement by the other Party which is not remedied within 30 days after the service on the Party in default of a Notice specifying the nature of the breach and requiring that the breach be remedied; or

(b) the other Party becoming Insolvent.

11.3 Effect of Agreement ending

Upon termination or expiry of this Agreement:

(a) you will be given a reasonable opportunity to download and export Your Data. Any work you request us to undertake to assist you with this, will be charged at our then prevailing hourly rates. You acknowledge and agree that under this Agreement you do not have a right to access, and we do not have any obligation to provide access to, any Raw Data. You acknowledge and agree that we are under no obligation to maintain any of Your Data or Raw Data after the Term. Accordingly, we will not be liable to you and/or your Authorised Users in anyway, where you have failed to obtain a copy of Your Data within 1 month after the Term;

(b) you must pay all outstanding Fees, and other charges due to us under this Agreement which will not include our Tax Invoice issued under clause 8.1(c) where you have terminated pursuant to clauses 8.1(f) and 11.1 ; and

(c) you must continue to adhere to the requirements of the licences to our Intellectual Property Rights granted in clause 4 (as applicable), and, in particular, cease all access to and Use of the Platform (including any Features and/or Reports, as applicable), and any e-Learning Services (as applicable); and

(d) any accrued rights or liabilities of either Party or any provision of this Agreement which is expressly or by implication intended to come into or continue in force on or after such termination will not be affected.

12. Indemnity and liability

12.1 Your indemnity

You indemnify and to keep indemnified us and our directors, officers, personnel, contractors and representatives (together those indemnified) against any Loss that may be incurred by any of those indemnified arising from or in connection with, directly or indirectly:

(a) any breach or default by you, your Authorised Users or your Representatives of this Agreement including any breach of warranty;

(b) a negligent act or omission by you, your Authorised Users or your Representatives;

(d) the failure of your Authorised Users and/or your Representatives to comply with any Law.

12.2 Our indemnity

(a) Subject to clauses 12.2(b), 12.4 and 12.5(b), we will indemnify you with respect to any Loss suffered as a result of any Claim made against you by a third party alleging that the Platform, Services or Reports infringe the Intellectual Property Rights of that third party.

(b) We will not be liable to you under clause 12.2(a) if:

(i) there is a breach of the Agreement;

(ii) you do not notify us of the other person's Claim within 10 Business Days after becoming aware of it;

(iii) our ability to defend the Claim has been prejudiced by your non-compliance with any of your obligations under this Agreement;

(iv) you do not give us reasonable assistance (based on the circumstances) in defending the Claim; or

(v) you do not permit us to have control of the defence of the Claim and all related settlement negotiations.

12.3 Disclaimer – Services & Platform

You acknowledge and agree that:

(a) This clause 12.3 only applies if you are not a natural person contracting with us in respect of the e-Learning Services.

(b) Our Services and Platform (including the Reports) provide information and insights designed to assist you with benchmarking the Characteristics; Employee Metrics; and Outcomes of Schools/Districts within the Region, and development of workforce plans and strategy documents. The Services and Platform (including Reports) are not a substitute for professional judgement or independent enquiry, analysis, testing or other similar activities a skilled professional would be expected to undertake before making a decision based on our Services and the Reports. Further, the Services and Reports are limited by the Data that is available which does not include Schools/Districts within the Region.

(c) In light of clause 12.3(a), we will not be liable in any manner and you hereby release and hold us harmless where Loss is suffered by you and/or any third party as a consequence of your reliance on the information or findings provided by the Services and/or Platform (including the Reports).

(d) It is your sole responsibility for you to ensure you and/or your Authorised Users apply a professional level of diligence and due care, in light of actual circumstances, before making any decision in any way in respect of or in relation to the Services and/or Platform (including the Reports).

12.4 Disclaimer – eLearning Services

You acknowledge and agree that:

(a) This clause 12.4 only applies if you are a natural person contracting with us in respect of the e-Learning Services.

(b) All information provided through the e-Learning Software is general information only and does not constitute legal or other professional advice and cannot be relied upon by you as such.

(c) You will make your own assessment of relevant course material and you have not relied and will not rely on any information given by us regarding the e-Learning Services and whether the e-Learning Services are reasonably fit for any purpose for which it will be used by you.

12.5 Exclusion of consequential loss

To the maximum extent permitted by Law, we will not be liable for Consequential Loss arising out of this Agreement or the use of the Platform and/or provision or non-provision of the Services even if we were appraised of the likelihood of such loss or damage occurring.

12.6 Limitation of liability

To the maximum extent permitted by Law:

(a) Except as expressly provided by this Agreement, the Platform and Services are provided on an “as is” basis without any representation, warranty or guarantee as to quality, condition or fitness for purpose and we do not warrant that the Platform and/or the Services will be free of defects, uninterrupted, accurate, complete, current, stable, bug free, error free or available at any time in respect of their operation;

(b) our liability in respect of any act or omission of ours in connection with our Obligations under this Agreement will not exceed the net payment received by us from you in the immediately preceding 12 months from when the cause of action arose; and

(c) We have no responsibility or liability whatsoever as a consequence of any Loss suffered by you and/or any third party as result of:

(i) any Data being lost, destroyed or damaged by the Platform, Services and/or Host, or any third party provider of cloud based storage or hosting; or

(ii) any third party software, platform, website, infrastructure or hardware malfunctions, errors, viruses or other like threats and/or lack of security; or

(iii) malfunctions or errors in the Platform and/or Services caused as a result of interference by third party software or with third party infrastructure or hardware malfunctions.

12.7 Exclusion of other Terms

(a) Subject to sub-clause (b), any condition, guarantee or warranty which would otherwise be implied in this Agreement is hereby excluded.

(b) Liability for breach of a guarantee conferred by the Australian Consumer Law (other than those conferred by ss 51 to 53 of the Australian Consumer Law) is limited (at our election) to us providing the Services again (including providing the Service deliverables or Reports again) or the payment of the cost of having the Services or Reports supplied again.

13. Disputes

If a dispute arises out of or relates to this Agreement (Dispute) a party to the Agreement may not commence any court or arbitration proceedings relating to the Dispute unless it has complied with this clause, except where the party seeks urgent interlocutory relief.
A party claiming that a Dispute has arisen must give a Notice (Dispute Notice) to the other party or parties to this Agreement specifying the nature of the Dispute. The parties must then negotiate in good faith to resolve the Dispute expeditiously using informal dispute resolution techniques such as mediation, expert evaluation or determination or similar techniques agreed to by them.
If the Parties do not resolve the Dispute within 14 days of receipt of the Dispute Notice (or such further period as agreed in writing by them) any party to the Dispute may refer the Dispute to mediation by a mediator nominated by the President or the nominee of the President for the time being of the Queensland Law Society Incorporated.
Each party must bear its own costs in connection with resolving the Dispute and the Parties must bear equally the costs of any mediator engaged.
Any information or documents disclosed by a party under this clause must be kept confidential and may not be used except to attempt to resolve the dispute.

14. Standard provisions

14.1 Costs

Each party will pay their respective costs and expenses in connection with the negotiation, preparation, execution, and performance of this Agreement

14.2 Notice

(a) Any notice given under or in connection with this Agreement must be in legible writing, in English and signed by the party giving the notice or (on its behalf) by an authorised agent and be delivered personally to the addressee or sent by post, or email to the addressee at the addresses notified from time to time for the purpose of receiving notices.

(b) A notice will be deemed to be received by the addressee:

(i) if delivered by hand, at the time of delivery;

(ii) if sent by prepaid post, on the fifth Business Day after the day on which it is posted, the first Business Day being the day of posting;

(iii) if sent by electronic mail, at the time of receipt in accordance with section 24 of the Electronic Transactions (Queensland) Act 2001 (Qld).

14.3 Essential terms

Clauses 4, 5, 6, 7, 8 and 10 are essential terms of this Agreement.

14.4 Variations

We may vary this Agreement from time to time, including as contemplated in clause 4.6. Your access of the Platform and/or Use of the Services, following any such variation, means you agree to the Agreement as amended.

14.5 Force majeure event

Neither party is liable for any breach of its Obligations under this Agreement (other than the Obligation to pay funds) to the extent that the breach resulted from any event that is outside the reasonable control of the affected party and could not have been prevented by that party taking reasonable steps or overcome by the exercise of reasonable diligence and at a reasonable cost (including lack of supply, industrial action, fire, riot, war, embargo, civil commotion for act of God) provided that the affected party:

(a) promptly notifies the other party of the event (with appropriate details); and

(b) takes all reasonable steps to work around or reduce the effects of the event.

14.6 Assignment and novation

(a) We may, upon providing Notice in writing to you, assign, novate or otherwise transfer the benefit of all or any part of this Agreement to any other person or entity.

(b) Neither any rights, benefits or liabilities relating to this Agreement may be assigned by you without our prior consent, which will not be unreasonably withheld.

14.7 General matters

(a) Each person who accepts this Agreement on behalf of a party under a power of attorney declares that such person is not aware of any fact or circumstance that might affect such person’s authority to do so under that power of attorney.

(b) Unless this Agreement expressly states otherwise, a party may in its absolute discretion, give conditionally or unconditionally or withhold, any consent under this Agreement. To be effective any consent under this Agreement must be in writing.

(c) The following documents are incorporated into this Agreement by reference, together with any other of our policies referenced in this Agreement and available on our Website:

(i) any terms and conditions that may apply in respect of the e-Learning Services, as contemplated in clause 4.11(b)(i)(B);

(ii) Data Security Documentation; and

(iii) Privacy Policy.

(d)If there is any inconsistency or conflict between any of the above documents and this Agreement, this Agreement prevails and take precedence to the extent of the inconsistency or conflict. This Agreement and the above documents contain the entire agreement between the parties about its subject matter. Any previous understanding, agreement, representation or warranty relating to that subject matter is replaced by this Agreement and has no further effect. Each party must promptly do all further acts and execute and deliver all further documents required by law or reasonably requested by another party to give effect to this Agreement.

(e) This Agreement is governed by the law in force in the Jurisdiction and each party submits to the non-exclusive jurisdiction of the courts of the Jurisdiction, in relation to any proceedings that may be brought at any time relating to this Agreement. Each party irrevocably waives any objection to proceedings being commenced in the Jurisdiction.

(f) Where a party is a party in more than one capacity, it is only necessary that the party accept and deliver this Agreement once. The initial acceptance and delivery will bind the party in all capacities.

(g) No right or obligation of any party will merge on completion of any transaction contemplated by this Agreement. Any indemnity given in this Agreement survives the expiry or termination of this Agreement and a party may enforce a right of indemnity at any time, including before it has suffered loss.

(h) Each party represents and warrants to each other party that it has the power to enter into and perform its Obligations under this Agreement and this Agreement creates valid and binding Obligations enforceable in accordance with their terms.

(i) Any provision of this Agreement that is illegal, void or unenforceable will be severed without prejudice to the balance of the provisions of this Agreement which remain in force.

(j) If a party enters into this Agreement as a trustee of a trust, it warrants that it enters into this Agreement as sole trustee of the trust and it has full power under the relevant trust deed to enter into and perform this Agreement.

(k) The non-exercise of or delay in exercising a right of a party will not operate as a waiver of that right, nor does a single exercise of a right preclude another exercise of it or the exercise of other rights. A right may only be waived by Notice signed by the party to be bound by the waiver.

15. Definitions and Interpretation

15.1 Definitions

In this Agreement:

Acceptance Date means:

(a) only where e-Learning Services are purchased by “you” as a natural person, the date you purchased the e-Learning Services from us; or

(b) otherwise in all other cases, the date that acceptance occurs under clause 2.

Account Establishment has the meaning given in sub clause 5.1(a).

Account Data means information and material captured as part of Account Establishment in respect of each of your Authorised Users including user details.

Admin Fee means a fee payable by you as a consequence of a late payment which is calculated based on the reasonable costs incurred by us relating to recovery.

Agreement has the meaning given in clause 1(a).

Australian Consumer Law means Schedule 2 of the Competition and Consumer Act 2010 (Cth).

Authorised Representative means the suitably qualified, authorised and informed representative that has been nominated by you to act on your behalf with respect to this Agreement.

Authorised User means any user of the Platform that you have provided with your authority to Use the Platform in accordance with this Agreement, which includes, if relevant, any Financial Officer and Authorised Representative.

Business Hours means the hours of 9 am - 5 pm each Business Day.

Business Day means a day that is not a Saturday, Sunday or public holiday and on which banks are open for business generally in Brisbane, Australia.

Characteristics mean key attributes of a School/District within the Region, including student numbers, student demographics and school type.

Claim includes a demand, claim, action, dispute or proceeding made or brought by or against the person, however arising and whether present, unascertained, immediate, future or contingent.

Confidential Information means information that is by its nature confidential and is designated by a party as confidential or a party knows or ought to know is confidential, other than information which is or becomes public knowledge (otherwise than by breach of this Agreement or any other confidentiality obligation).

Consequential Loss means indirect economic loss, loss of income or profit, loss or damages resulting from wasted management time, damage to goodwill or business reputation, loss of contract, loss of data, liability under other agreements or to third parties, loss of opportunity or any other special, indirect, remote or punitive loss or damage.

Corporations Act means the meaning given in 15.2(n).

Data means all data that is stored or contained within or otherwise accessible by the Platform.

Data Assistance has the meaning given in clause 4.4.

Data Breach has the meaning set out in clause 6.2

Data Requirements means our prescribed directives that define the content and structure of the School Data (including as to the quality, integrity and format of data) required in order to effectively load the School Data into the Platform, as determined by us from time to time.

Data Security Documentation means documentation provided by us to you which sets out all our data security policies and procedures, as updated by us from time to time.

Default Rate means the compound interest rate of 10% which is taken to accrue on a daily basis.

Defect means an error in the functionality of the Platform or a Feature with reference to the intended operation set out in the User Documentation caused by an issue we are responsible for.

Development has the meaning given in clause 4.10.

e-Learning Services has the meaning given in clause 4.11(a).

e-Learning Services means any professional learning, other resources and/or auxiliary services in relation to e-learning and online courses and content to improve workforce capability, as offered on the Third Party Platform which you access via the Platform.

Employee Metrics mean key staff information of a School/District within the Region including number of staff, staff roles and staff experience, and, in an aggregated or coded format only, key information (where applicable) about staff engagement, staff wellbeing and/or staff perspectives of organisational culture.

Establishment Services means training, Data Assistance and any other set up activities.

Expenses has the meaning given in clause 8.1(a).

Jurisdiction means Brisbane, Queensland, Australia.

Features mean template software add-ins and 3rd party integrations (API’s), as offered by us from time to time, that are additional to the Platform.

Fees mean all fees due and payable to us under this Agreement (including the Subscription Fees and any Admin Fee).

GST means a goods and services tax, or a similar value added tax, levied or imposed under the GST Law.

GST Law has the meaning given to it in the A New Tax System (Goods and Development Services Tax) Act 1999 (Cth).

Host means the cloud server host that we have engaged to store all the Data and enable your Authorised User’s access to the Platform.

Initial Term has the meaning set out in clause 3.1.

Insolvent means if a person is insolvent or an insolvent under administration, or has a controller appointed (each as defined in the Corporations Act), are in receivership, in receivership and management, in liquidation, in provisional liquidation, under administration, wound up, subject to any arrangement, assignment or composition, protected from creditors under any statute, dissolved (other than to carry out a reconstruction whilst solvent) or otherwise unable to pay debts when they fall due.

Intellectual Property Rights means all intellectual property rights, including the following rights:

(a) copyright, patents, rights in circuit layouts, trademarks, designs, trade secrets, know how, and any right to have confidential information kept confidential;

(b) any application or right to apply for registration of any of the rights referred to in paragraph (a); and

whether or not such rights are registered or capable of being registered.

Improvement has the meaning given in sub clause 4.10.

Law includes any requirement of any statute, rule, regulation, proclamation, ordinance or by-law, present or future, and whether state, federal or otherwise.

Loss includes any damage, loss, cost, liability or expense of any kind and however arising (including as a result of any Claim) including penalties, fines and interest whether prospective or contingent and any amounts that for the time being are not ascertained or ascertainable.

Moral Right means moral rights as defined in the Copyright Act 1968 (Cth).

New Services means services offered by us in addition to the Services described in this Agreement (including services which extend, alter, improve or add functionality to the Services).

Notice means a notice given under or in connection with this Agreement that adheres to the requirements in clause 14.2.

Obligations means any legal, equitable, contractual, statutory or other obligations, agreements, covenants, commitments, duties, undertakings or liabilities.

Outcomes means the key performance indicators of a School/District within the Region including student results, staff accolades and overall school performance.

Personnel means employees and/or contractors.

Platform means our cloud-based data analytics software through which we provide the Platform Services, including Reports and User Documentation, and any Features (if applicable) and/or Improvements (if applicable).

Platform Services means data analytics for the purposes of:

(a) benchmarking the Characteristics, Employee Metrics and Outcomes; and/or

(b) development of workforce plans and strategy documents, of Schools/Districts within the Region provided via the Platform.

Proposal means our proposal to you (if any), signed by both parties.

Raw Data means any raw data gathered by us directly from your staff in relation to any Services via any survey or other means.

Region has the meaning set out in clause 4.1(b)(i)(D).

Reports mean any work reduced to writing, tables or graphical representation prepared by us, or on our behalf, that relate to the Characteristics, Employee Metrics or Outcomes of Schools/Districts that have had their data Uploaded to the Platform.

Representative of a person means an officer, employee, contractor, professional adviser or agent of that person

Representative Purpose has the meaning given in clause 9.1.

Rights includes legal, equitable, contractual, statutory or other rights, powers, authorities, benefits, privileges, remedies, discretions or causes of action.

Rollover Period means a duration of time equal to the Initial Term that arises:

(d) at the expiration of the Initial Term; and

(e) again in perpetuity on the expiry of each subsequent Rollover Period.

School Data means data relating to the Characteristics, Employee Metrics and Outcomes of, and/or development of workforce plans and strategy documents for, your School/District or Schools/Districts that have been or will be Uploaded to the Platform by you or on your behalf.

School/District means a school, school system, district or other like body (as applicable).

Services mean Establishment Services, Platform Services, e-Learning Services and Support Services individually, jointly or collectively as the context requires, and which may also include New Services.

Subscription Fees mean the fees payable in advance to us for our provision of access to the Platform and our rendering of Platform Services for the Initial Term and each Rollover Period, which as at the Acceptance Date are equal to an amount published on our Website.

Support Services mean services rectifying Defects in the operation and function of the Platform or the delivery of the Platform Services but does not include Establishment Services.

System means all computer firmware, middleware, protocols and other computer programs and all computer hardware, peripheral equipment, networks, communications systems and other equipment of whatever nature, used in your receipt of the Services and access to the Platform.

Term has the meaning set out in clause 3.2.

Third Party Platform means any platform hosted by a third party (including Thinkific) through which e-Learning Services may be delivered.

Upload means to input, upload or import.

Use means to load, execute, display and perform.

User Documentation means any material we have provided or made available to you containing technical and/or practical information regarding Use by you and your Authorised Users of the Platform and receipt of the Services.

Website means our website located at www.peoplebench.com.au.

Your Data means the School Data and Account Data collectively but excludes any Raw Data.

15.2 Interpretation

In interpreting this Agreement:

(f) the singular includes the plural and vice versa;

(g) another grammatical form of a defined word or expression has a corresponding meaning;

(h) a reference to time is to time in the capital city of the Jurisdiction;

(i) a reference to a person includes a natural person, partnership, body corporate, association, joint venture, and governmental or local authority or agency or other entity;

(j) a reference to a party means a party to this Agreement and includes the party’s executors, administrators, successors, substitutes (including by novation) and assigns;

(k) a reference to a group of persons is to any 2 or more of them taken together and to each of them individually;

(l) a reference to a statute, regulation, code or provision of a statute, regulation or code (Law) includes that Law as amended or re-enacted, a statute, regulation, code or provision enacted in replacement of that Law, another regulation or other statutory instrument made or issued under that Law and any amendment made to that Law as a consequence of another statute, regulation, code or provision;

(m) “including” and similar expressions are not words of limitation;

(n) conduct includes an omission, statement or undertaking, whether or not in writing;

(o) a rule of construction does not apply to the disadvantage of a party because the party was responsible for the preparation of this Agreement or any part of it;

(p) if a day on or by which an obligation must be performed or an event must occur is not a Business Day, the obligation must be performed or the event must occur on or by the next Business Day;

(q) if a period of time is specified and dates from a given day or the day of an act or event, it is to be calculated exclusive of that day;

(r) a word or expression defined in the Corporations Act 2001 (Cth) (Corporations Act) has the meaning given to it in that Act; and

(s) headings and table of contents are for ease of reference only and do not affect interpretation.

15.3 Parties

(a) If a Party comprises 2 or more persons, a reference to that Party includes each and any 2 or more of them, and this Agreement binds each of them separately and any 2 or more of them jointly.

(b) A party that is a trustee is bound both personally and in its capacity as a trustee.

(d) Nothing in this Agreement is or will be construed as creating a partnership or any fiduciary or other relationship between the Parties, or provide any exclusivity in the relationship between the Parties or the provision of the Services.

16. Media

From time to time, PeopleBench is requested to provide evidence of organisations PeopleBench has worked with, this may include referencing client names, logos and project titles. No breach of confidentiality with respect to the specific nature of your engagement with us or any of the recommendations we have provided you with will occur. Notwithstanding any other provision of this Agreement, by entering into this Agreement you agree to us using your name, logo and project title in our media and public relations activities, and in bidding for further work without seeking further permission to do so.