Customer Agreement – Terms of Service
Terms of Service
Effective starting: March 01, 2022
This Educator Impact Customer Agreement (the “Agreement”) is between you and EI Pty Ltd (ABN 32 169 499 807) (“EI”). If you are agreeing to this Agreement not as an individual but on behalf of your company or school, then “Customer” or “you” means your company or your school, and you are binding your company or school to this Agreement. EI may modify this Agreement from time to time, subject to the terms in Clause 22 (Changes to this Agreement) below:
By clicking on the “I agree” (or similar button) that is presented to you at the time of your Order, or by making a payment in relation to an invoice or using or accessing Educator Impact’s products, you indicate your assent to be bound by this Agreement.
1. SCOPE OF THE AGREEMENT
2.1 EI’s Invoice will specify the number of licences, subscription start and subscription end and billing requirements.
3. EDUCATOR IMPACT OBLIGATIONS
3.1. Educator Impact grants the Customer: a. a non-exclusive, non-transferable, personal limited use right to access and use the Services for the Customer’s internal business operations for the number of licences for which the Customer has paid the fees for the Subscription Period; b. the right to receive support services. 3.2. Educator Impact will perform its obligations under this Agreement with due care and in a professional timely manner and will seek the Customer’s feedback, and wherever possible make continual improvements to its services.
4. CUSTOMER OBLIGATIONS
4.1. The Customer will promptly provide all decisions and information requested by Educator Impact in connection with the Services; and 4.2. The Customer will ensure that all information and materials provided to Educator Impact in connection with this Agreement is accurate and provided promptly or otherwise within the agreed timeframes and; a. is not misleading, deceptive, defamatory, unlawful or objectionable; and b. does not infringe the intellectual property rights of any person or other entity. 4.3. The Customer will appoint a Customer Coordinator responsible for the following tasks: a. complete key responsibilities as outlined in the Customer Coordinator Handbook; b. ensure that each Participant understands the EI products, its logistics at the school. 4.4. If the Customer fails to comply with its obligations under this clause 4, Educator Impact will not be liable for any failure to meet any timelines.
5.1. The Customer acknowledges that the content of any report, feedback or other document contains Confidential Information. 5.2. The Customer must use commercially reasonable endeavours to ensure that every participant in the Services uses an email address and software that is secured by effective security so that only the participant (and information technology support staff) can access information made available from the Services. 5.3. The Customer must keep confidential all reports, documents and any other information supplied to it pursuant to the Services.
6. FEES AND PAYMENT
6.1. The Customer will pay to Educator Impact the fees and charges for the Services and the Licence Fee without set-off or deduction within 14 days of the invoice date. 6.2. At any time during the period of this agreement, you may add additional licences to your subscription and we will invoice you in accordance with the licences ordered in the online signup form or by email confirmation. 6.3. If a Multi-year Discount is specified in an invoice Educator Impact issues to the Customer, and the Customer pays the invoice, then: a. The period of this agreement is the Multi-year Subscription Period; b. The Customer shall be entitled to the Multi-year Discount, subject to sub-clause d. c. The Customer may terminate this agreement by giving Educator Impact not less than three months’ notice in writing prior to each anniversary of the Commencement Date; d. If the Customer terminates this agreement prior to the end of the Multi-year Subscription Period, Educator Impact will invoice the Customer for and the Customer must pay to Educator Impact an amount equivalent to all Multi-year Discounts actually applied to the Fees during the Multi-year Subscription Period. e. If the Customer changes their subscription by reducing the number of licenses ordered prior to the end of the Multi-year Subscription Period, Educator Impact will invoice the Customer for and the Customer must pay to Educator Impact an amount equivalent to all Multi-year Discounts actually applied to any license fees during the Multi-year Subscription Period for the license reduction. 6.4. If an Early Payment Discount is specified in the invoice and Customer pays the invoice then: a. Clause 6.3 shall apply; b. The Fees shall be discounted in accordance with the Early Payment Discount; c. The Customer must within 14 days of receipt of an invoice on or about the Commencement Date pay the Fees for years one and two of the Multi-year Subscription Period; d. If the Customer terminates this agreement prior to the end of the Multi-year Subscription Period, Educator Impact will invoice the Customer for and the Customer must pay to Educator Impact in addition to any other amounts owing (including under clause 6.4) an amount equivalent to the Fees multiplied by the Early Payment Discount multiplied by the number of years of the Multi-year Subscription Period. 6.5. All amounts payable under this Agreement are exclusive of GST. If GST is payable in relation to a Taxable Supply, the amount payable for that Taxable Supply is the amount for that Taxable Supply specified in this Agreement plus GST. The parties must provide each other with all documentation required to claim any Input Tax Credit, set off, rebate or refund for or in relation to any GST included in any payment made under this Agreement. In this clause 6.6, the terms “GST”, “Taxable Supply” and “Input Tax Credit” have the meaning given in A New Tax System (Goods and Services Tax) Act 1999 and related tax imposition Acts of the Commonwealth of Australia. 6.6. If the Customer fails to pay an overdue amount within 7 days of a notice that the invoice is overdue, Educator Impact reserves the right to suspend the delivery of the Services or any other obligations under this Agreement until the overdue invoice is paid in full.
7.1. Each licence permits one Participant to access one product during the subscription period. Two different Participants cannot share the same licence. 7.2. Participants who are added during the Subscription Period will have the same expiry as other licences. 7.3. The Customer acknowledges and agrees that the Licence Fee payable for each licence is based on the then-current Licence Fee for such licences. 7.4. If the Customer requests an additional licence in accordance with clause 6.2, Educator Impact will invoice the Customer the Licence Fee for the additional licence(s). 7.5. A license is deemed to be used when a Participant is registered in EI’s application either through self-service or managed service. 7.6. Excluding License Packs, a. Customer may request a credit note to the value of the Licence Fee for each unused licence, up to a maximum of 10% of the total number of licences purchased by the Customer during that Subscription Period; and b. The Customer may use the credit note in accordance with the terms and conditions in clause 7.7. c. For example, if the Customer purchases 50 licences during the first year of their Subscription Period, any credit note issued under this Agreement will be subject to a maximum value of 5 (being 10% of 50) x the Licence Fee for each licence. 7.7 Any credit notes issued by Educator Impact to the Customer under clause 7.6 are subject to the following terms and conditions: a. the Customer may apply the credit note to one or more future invoices issued by Educator Impact to the Customer under this Agreement; b. the credit note is not transferable or redeemable for cash; and c. the credit note will automatically expire on the earlier of:12 months from the date of issue; or the date on which this Agreement expires or is terminated for any reason.
8. DELIVERY OF EI 360 DEGREE FEEDBACK PROFESSIONAL DEVELOPMENT
8.1. A Cycle of the EI Process begins when the Customer gives Educator Impact the details of each Participant and agrees the Delivery Schedule. 8.2. The Customer is permitted to run a maximum of 4 Cycles of the EI process per year per product. 8.3. A Participant will be considered to have successfully completed a Cycle of the EI Process for Teachers when he or she has collected feedback from at least one student and observer, attended the goal-setting workshop and submitted a S.M.A.R.T. goal. 8.4. The Services will always be delivered using the latest version of Educator Impact.
9. OPERATIONAL ISSUES
9.1. The Customer must not, unless expressly provided by this Agreement; a. use the Services to provide any facility management or service bureau service, or for the benefit of any third party other than as set out in this agreement; b. copy, adapt, translate, publish, communicate to the public, or create any derivative work or translation of the Services; c. sub-licence, lease, rent, loan, assign, novate or otherwise transfer the Services to any third party; d. disclose the Services to any third party other than any of Customer’s contractors who are bound by obligations of confidentiality which are no less restrictive than those specified in this agreement; e. reverse engineer, reverse compile, de-compile or disassemble the object code of the Services or any part of the Services, or otherwise attempt to derive the source code of the Services, except to the extent permitted by law; 9.2. The Customer must not use the Services for any use or with any Customer Content that: a. infringes any person’s intellectual property rights, right to privacy, right to keep confidential information confidential, right to publicity or induces any person to breach a contract; b. is unlawful (including breaching laws relating to the wrongful distribution of email or other electronic messages “spam”), discriminatory, derogatory, defamatory, slanderous, malicious, obscene, contains child pornography or is immoral; c. contains any virus, Trojan horse or other malicious code, or is used to gain unauthorised access to, does harm to, wrongfully intercepts, expropriates, accesses or uses for any wrongful purpose, any person’s hardware, software, network or data; d. wrongly identifies, or disguises, the sender or place of origin of any communication; e. contains links to any other website that contains information that is of a type described in this clause ((f)); f. in Educator Impact’s opinion, exceeds “fair use” by using a disproportionate or in appropriate amount of the infrastructure or resources that are used to operate the Services; g. access, monitor or copy any content of the Services using any robot, spider, scraper or automated process or manual process, or deep link or any part of the Services; h. bypass or circumvent, or attempt to bypass or circumvent any measure that is designed to limit access to any part of the Services, including uncapped that to the extent permitted by law; i. frame, mirror or otherwise include any part of the Services in any other website or application; j. use the Services for the purpose of building a competitive product or service or copying its features or user interface; k. remove, alter or obscure any Educator Impact trademarks, or any proprietary or restricted use notice on the Services or any material that is downloaded from it; or l. allow the Services to become the subject of any charge, lien or other encumbrance. m. deal in any other manner with any or all of Customer’s rights and obligations under this agreement.
10.1. This Agreement is in effect for as long as you have a valid Licence or Subscription Period, unless sooner terminated as permitted in this Agreement. Either party may terminate the Agreement on 7 days’ written notice to the other party if the other party: a. breaches the terms of the Agreement which breach remains unremedied for more than 21 days; b. becomes insolvent, bankrupt, goes into liquidation, commences winding up proceedings, or has a receiver or a receiver and manager appointed. 10.2. On the termination of this Agreement: a. Educator Impact is no longer obligated to perform any of the Services; and b. any credit notes issued under clause 7 will automatically expire and the Customer will not be entitled to a refund for any unused credit. 10.3. The Customer will be eligible for a full refund of the Licence Fees if the Customer terminates this Agreement within 14 days from the date the license fees have been paid provided the Services have not commenced. 10.4. The Customer will be eligible for a 50% refund of the Licence Fees if the Customer terminates this Agreement after 14 days but within 30 days from the date the license fees have been paid provided the Services have not commenced. 10.5. The Customer will be not be eligible for a refund of the Licence Fees if the Customer terminates this Agreement after 30 days from the date the license fees have been paid.
11. PRIVACY AND CONFIDENTIALITY
12. INTELLECTUAL PROPERTY
12.1. The Customer owns the Customer Content and all rights (including intellectual property rights), title and interest to Customer Content. The Customer grants Educator Impact a non-exclusive licence to use Customer Content for the purpose of performing Educator Impact’s obligations under this Agreement and any support services. Educator Impact has no right or obligation to review, edit or modify the Customer Content for any other purpose except as expressly set out in this agreement. 12.2. Educator Impact or a third party owns all rights (including intellectual property rights), title and interest to the Pre-existing Materials and the Contract Materials. 12.3. Educator Impact grants the Customer a non-exclusive, non-transferable perpetual licence to use: a. the Pre-Existing Materials to the extent that such materials form part of, or are integral to, the Contract Materials; and b. the Contract Materials for the purposes contemplated by this Agreement. 12.4. The Customer will not copy, reproduce or distribute the Contract Materials or the Pre-Existing Materials without Educator Impact’s prior written consent. 12.5. Educator Impact has no liability for any claim of infringement for a. any use of the Contract Materials by the Customer in any manner inconsistent with this Agreement; or b. the Customer’s use of the Contract Materials in combination with other materials not provided by Educator Impact.
13. FEEDBACK TO EDUCATOR IMPACT RELATING TO OUR SERVICES
13.1. The Customer and any Participant who provides feedback to Educator Impact grants Educator Impact a worldwide, royalty-free, non-exclusive, perpetual and irrevocable licence to use, copy, modify and otherwise exploit any suggestions, recommendations or other feedback provided by the Customer or its Participants or its other staff relating to the Services provided by us.
14. THIRD PARTY RESOURCES
14.1. The Services may include Third Party Products. The Customer acknowledges that: a. the Customer’s (or Participant, as applicable) use of Third Party Products will be subject to the Third Party Contract(s); and b. the Third Party Contract(s) will be between the Customer (or Participant, as the applicable) and the Third Party Supplier.
15. WARRANTIES AND INDEMNITIES
15.1. The Customer warrants that it is capable of using EI products as contemplated under this Agreement. 15.2. Educator Impact does not represent or warrant that the Services will be secure, confidential, uninterrupted, error-free, accurate, complete or current. The Customer acknowledges that there are risks inherent in internet connectivity that could result in the corruption or loss of the Customer’s privacy, data, Confidential Information and other property. 15.3. Educator Impact makes no representations or warranties in relation to any Third Party Products. 15.4. To the extent permitted by law, Educator Impact excludes all conditions, terms, representations and warranties other than those expressly set out in this Agreement. 15.5.To the extent that the provisions of the Competition and Consumer Act 2010 (Cth) (CCA) apply to goods or services supplied under this agreement, then the provisions of this agreement are subject to the provisions of the CCA. 15.6. To the extent that there is a failure to comply with a guarantee under sections 54 to 59 of the CCA in respect of goods which are not goods of a kind that are ordinarily acquired for personal, domestic or household use or consumption, then to the extent permitted by law, the Supplier’s liability is limited to one or more of the following, at the election of the Supplier; a. the replacement of the goods or the supply of equivalent goods; b. the repair of the goods; c. the payment of the cost of replacing the goods or of acquiring equivalent goods; d. the payment of the cost of having the goods repaired. 15.7. To the extent that there is a failure to comply with a guarantee in respect of the supply of services under sections 60 to 62 of the CCA, then to the extent permitted by law, the Supplier’s liability is limited to one or more of the following, at the election of the Supplier: a. supplying the services again; or b. payment of the cost of having the services supplied again. 15.8. If the Australian Consumer Law applies to goods supplied under this agreement, then “Our goods come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and for compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure.” 15.9. The services that are provided under this agreement to remedy any defect in the Services are a “warranty against defects” as defined in regulation 90 of the CCA. These services are provided by Educator Impact of 3rd Floor, Customs House, 31 Alfred Street, Sydney, telephone number +61 1800 864 896, email address [email protected]. 15.10. The Customer indemnifies, defends and holds Educator Impact harmless against all loss, damage, claims, liabilities, costs and expenses (including legal fees) arising from, or in connection with: a. any claim or demand brought by third parties in relation to the Customer Content or the Services; and b. any negligent, wrongful, unlawful or fraudulent act or omission or any breach of this Agreement by the Customer or its officers, employees, contractors, agents or service providers. except to the extent that such loss, damage, claims, liabilities, costs and expenses is caused by Educator Impact. 15.11. To the extent permitted by law, Educator Impact excludes liability for: a. Third Party Products; b. loss of data, loss of revenue, loss of profits, loss of opportunities and any indirect or consequential loss or damage; c. any delays in the rollout of the EI products caused by the Customer; or d. any Customer Modifications. 15.12. To the extent permitted by law, Educator Impact’s total aggregate liability in connection with this Agreement, whether based on warranty, contract, statute, or tort (including negligence) will not exceed two times the Licence Fees paid by the Customer to Educator Impact in the 12 months preceding the date of the claim.
16.1. Educator Impact may communicate for marketing and promotional purposes that the Customer has implemented the EI products at its school. 16.2. Educator Impact may use the name and/or logo of the Customer for marketing and promotional purposes.
17. CUSTOMER SUPPORT
17.1. The Customer, Customer Coordinator or Participants may raise technical or delivery issues by email to [email protected]. Issues will be assessed by an EI Support Administrator and prioritised as per internal Customer support processes. 17.2. Educator Impact Customer support hours are between 9:00am and 5:00pm (AEST) Monday to Friday with the exception of NSW or national public holidays. 17.3. For any disputes or complaints which are unable to be resolved by an EI Support Administrator the Customer should contact the EI Support Manager.
18. FORCE MAJEURE
18.1. In the event that the performance of any obligation under contract by either Educator Impact or the Customer is prevented due to an event of Force Majeure, neither party will be responsible to the other for failure or delay in performance of its obligations under this Agreement. Each party shall promptly notify the other parties of the occurrence of an event of Force Majeure.
19. GOVERNING LAW AND JURISDICTION
19.1. The laws of New South Wales govern this Agreement, and each party unconditionally submits to the exclusive jurisdiction of the courts of New South Wales, Australia.
20. ENTIRE AGREEMENT
20.1. This Agreement is the entire agreement in relation to the subject matter between the parties and may not be amended or supplemented other than in writing signed by both parties. 20.2. This Agreement supersedes all prior agreements and understandings between the parties in relation to the subject matter of this Agreement. 20.3. If the Australian Consumer Law applies to this agreement, nothing in this agreement excludes, restricts or modifies a guarantee, right, liability or remedy to the extent that to do so would render a term void or be a breach of the Australian Consumer Law.
21.1. If this Agreement is rendered invalid at any time by any provision contained in it, any such provision will to the necessary extent be excised from the Agreement and the remainder of both the clause and this Agreement will continue.
22.1. Educator Impact reserves the right to amend any terms and conditions in this Agreement from time to time including any referenced policies and other documents. If a revision meaningfully reduces your rights, we will use reasonable efforts to notify you (by, for example, sending an email to the billing or technical contact you designate in the applicable Service Order, posting on our blog, through your EI account, or in the product itself). If we modify the Agreement during your Subscription Period, the modified version will be effective upon your next renewal of a Subscription Period, as applicable. In this case, if you object to the updated Agreement, as your exclusive remedy, you may choose not to renew, including cancelling any terms set to auto-renew. With respect to no-charge products, accepting the updated Agreement is required for you to continue using the no-charge products. You may be required to click through the updated Agreement to show your acceptance. If you do not agree to the updated Agreement after it becomes effective, you will no longer have a right to use no-charge products. For the avoidance of doubt, any Service Order is subject to the version of the Agreement in effect at the time of the Service Order.
23.1. In this Agreement , the following definitions apply:
- Australian Consumer Law means Schedule 2 of the Competition and Consumer Act 2010.
- Certificate of Completion means a certificate awarded to a Participant who has completed a Cycle of the EI Process.
- Customer Coordinator means an employee of the Customer
- Customer Content means all content and materials the Customer provides Educator Impact for the provision of the Services.
- Confidential Information means: Information or material designated as ‘confidential’ or proprietary to EI or the Customer; Trade secrets of either EI or the Customer; Information which the receiving party should reasonably be aware is confidential.
- Contract Materials means all software, materials, reports, processes, methods, specifications, documents and other works created by or on behalf of Educator Impact in connection with the provision of the Services, including all surveys, handouts, speakers’ notes, lectures, learning aids, data, presentations, audio visual productions and materials associated with EI products.
- EI means Educator Impact.
- Force Majeure means anything outside the control of a party including acts of nature, war, hostilities, civil disturbances, revolutions, terrorist attacks, or industrial action outside the party’s own workforce.
- Licence means the right for a unique Participant (identified by a unique email) to be registered in a Product.
- Licence Fee means the fee payable by the Customer for the licences as set out in the Service Order Form.
- Service Order means an order form that sets forth the Educator Impact products that are being licensed by Customer
- Participants mean students nominated by the Customer to participate in Student Pulse.
- Pre-Existing Materials mean any materials existing at the date of this Agreement, and in the case of Educator Impact, includes all trademarks, designs, design specifications, software, hardware or other documentation and materials used in Educator Impact’s business;
- Subscription Commencement Term means the school term specified in the invoice.
- Subscription Period means the length of time set forth on a Service Order for which you agree to use and pay for the Services.
- Demographic Data means information relating to Year/Grade/House a participant belongs to, and Gender.
- Third Party Supplier means the supplier that supplies the Third Party Products (other than Educator Impact).
- We means Educator Impact.
- You means the Customer.
In this Agreement: 24.1. headings are for convenience only and do not affect the interpretation of this Agreement; 24.2. the singular includes the plural and vice versa; 24.3. a gender includes any other gender; 24.4. a reference to a Clause or Schedule means a clause or schedule of this Agreement; 24.5. a reference to a party in this Agreement includes its agents, successors, licences and permitted assigns; 24.6. a reference to ‘dollars’ or ‘$’, is to Australian currency unless specified otherwise; 24.7. ‘include’ and similar expressions are not words of limitation; 24.8. ‘person’ includes a natural person, body corporate, partnership, joint venture, association or any other legal entity; 24.9. all warranties, representations and undertakings will survive completion of this Agreement; 24.10. defined terms used in this Agreement have the meaning given to them in the Invoice or in the Agreement as the case may be; any notice given under the Australian Consumer Law shall be given in accordance with the provisions of the Australian Consumer Law.
Addendum One – FERPA and California AB 1584.
In the United States of America, federal and Californian law required that Educator Impact abides by certain conditions. We undertake to abide by the following, for all our schools, globally.
FERPA and California AB 1584.
Regarding FERPA and California AB 1584 (Buchanan) Privacy of Pupil Records: 3rd-Party Digital Storage & Education Software (Education Code section 49073.1), Educator Impact will abide to the following:
- Student records obtained by Educator Impact from an educational institution continue to be the property of and under the control of the educational institution. The educational institution retains full ownership rights to the personal information and education records it provides to Educator Impact.
- Educator Impact users may retain possession and control of their own generated content using EI Pulse.
- Parents, legal guardians, or eligible students may review personally identifiable information in the student’s records and correct erroneous information by contacting their educational institution. Additionally, Educator Impact users may access, correct, update, or delete personal information in their profile by contacting their school and having the school make the appropriate changes in the EI Pulse portal (or their School Information Management System).
- Educator Impact is committed to maintaining the security and confidentiality of student records. Towards this end, we take the following actions: (a) we limit employee access to student data to only those employees with a need to such access to fulfil their job responsibilities; (b) we conduct background checks on our employees that may have access to student data; (c) we conduct regular employee privacy and data security training and education; and (e) we protect personal information with technical, contractual, administrative, and physical security safeguards in order to protect against unauthorized access, release or use.
- In the event of unauthorized disclosure of a student’s records, Educator Impact will (1) promptly notify Users unless specifically directed not to provide such notification by law enforcement officials. The notification shall identify: (i) the date and nature of the unauthorized use or disclosure; (ii) the Private Data used or disclosed; (iii) general description of what occurred including who made the unauthorized use or received the unauthorized disclosure; (iv) what Educator Impact has done or shall do to mitigate any effect of the unauthorized use or disclosure; (v) what corrective action Educator Impact has taken or shall take to prevent future similar unauthorized use or disclosure; and (vi) who at Educator Impact the User can contact. Educator Impact will keep the User fully informed until the incident is resolved.
- Educator Impact will delete or de-identify personal information when it is no longer needed, or at the direction or request of the educational institution.
- Educator Impact agrees to work with educational institution to ensure compliance with FERPA and the Parties will ensure compliance by providing parents, legal guardians or eligible students with the ability to inspect and review student records and to correct any inaccuracies therein as described in statement (4) above.
- Educator Impact prohibits using personally identifiable information in student records to engage in targeted advertising.