Terms and Conditions
In these terms and conditions, we have included plain language statements in italics at the start of each section. These are meant to help provide a high level understanding of the terms and conditions. Please also read the detailed points, as they provide more detail and specifics in each case.
1. Duration
This is a binding agreement that from the Commencement Date to the End Date specified in the License Agreement.
1.1. These Terms and Conditions, together with the License Agreement constitute an agreement between the customer named in the License Agreement (the School) and MATHS PATHWAY PTY LTD (ACN 166 061 516) (Maths Pathway) of 53 Park St, South Melbourne in the State of Victoria (this Agreement). You should read these terms carefully before signing the License Agreement.
1.2. This Agreement shall have effect from the date specified in the License Agreement (Commencement Date), until the end date specified in the License Agreement (End Date), unless terminated earlier in accordance with this Agreement.
2. Licence of the Maths Pathway Learning and Teaching Model
Our job is to provide access to
all the tools and resources required for you to use Maths Pathway successfully.
Those items are detailed in this section.
2.1. As from the Commencement Date, Maths Pathway shall grant a license to the School to access and use the following items (the Licensed Material):
● The online student and teacher components of the Maths Pathway Learning and Teaching Model (Model)
● To be accessed online with the Model, all academic content associated with the Model, in the form of modules, explicit exposure exercises, online assessments, mini-lessons, rich tasks,
projects, lesson ideas, and other provided lesson plans.
● To be accessed electronically but saved to local devices, some academic content associated with the Model, in the form of modules and explicit exposure exercises within offline packs generated within the Model.
● To be available for print, some academic content associated with the Model, in the form of printed topic tests, exams, projects, and any student print-outs laid out in the preparation section
of provided lesson plans.
● All training content associated with the Model, including any content developed specifically for the School.
2.2. The Licensed Material will be amended from time to time at Maths Pathway’s sole
discretion, including but not limited to additions, deletions and modifications
to the content, applications and other components of the model.
2.3. The License shall be granted on a per-student basis.
3. Services
During this agreement, we will provide access to the Maths Pathway tools and products, as well as technical support to help you make good use of them.
3.1. As from the Commencement Date, Maths Pathway shall provide to the School access to the Licensed Material, and technical support in relation to the use of the Licensed Material (the Services). Maths Pathway shall endeavour (but is not obligated) to respond to technical support requests within 24 hours of receiving a written request.
3.2. Maths Pathway may provide further professional development services while this agreement is in effect, to be documented in a separate agreement between the parties.
3.3. For the avoidance of doubt, Maths Pathway will not install any hardware or software and its technical support relates only to the use of the Licensed Material.
4. License Fee
In return for using Maths Pathway, you need to pay the fees specified in the License Agreement. Late fees
will apply to outstanding payments. You can increase the number of students using Maths Pathway at any time, provided you pay the appropriate fees for those new students. You can reduce the number of students using Maths Pathway, only once, by up to 10%, based on enrolment variations; or by a larger amount if we agree to the change.
4.1. In consideration of Maths Pathway granting the License and supplying the Services while this agreement is in effect, the School agrees to pay the fees specified in the License Agreement (License Fee) on the terms specified in the License Agreement (License Fee Payment Terms). All fees are expressed exclusive of GST unless specifically stated otherwise.
4.2. If
the License Fee is outstanding at any time, where ‘outstanding’ means in contravention of the License Fee Payment Terms, then Maths Pathway may at its sole discretion charge a late payment fee for each month that the License Fee is outstanding.
● The late payment fee will be calculated by applying a 1% annual compound interest rate, compounded daily, to the sum of the outstanding amount of the License Fee and any existing late
payment fees.
● The late payment fee will be calculated monthly on the anniversary of the original License Fee payment date.
4.3. In the event that the License Fee is outstanding for more than 90 days, Maths Pathway may suspend or terminate the License upon written notice to the School with effect from the conclusion of the current school term. If the License is suspended or terminated, late payment fees will no longer accrue; the School is still liable to pay the License Fee and any late payment fees already accrued. Upon full payment of all outstanding license fees, Maths Pathway may at its discretion resume or reinstate the Licence.
4.4.
Maths Pathway may donate to the School a number of free licenses to use the Licensed Material (Donated Licenses), provided:
4.4.1. any Needs Based Licenses may be offered at Maths Pathway’s sole discretion, on terms specified by Maths Pathway, and
4.4.2. any Needs Based License will be reviewed on the anniversary of the License Agreement, at which point the total number of Needs Based Licenses may be changed on terms specified by Maths Pathway.
4.5. At the request of the School, Maths Pathway may increase the Number of Licensed Users authorised to use the Licensed Material while this agreement is in effect, subject to the License Fee Payment Terms.
4.6. If Maths Pathway agrees to increase the Number of Licensed Users authorised to use the Licensed Material pursuant to clause 4.5., Maths Pathway may increase or otherwise vary the License Fee in respect of the additional Licensed Users.
4.7. At the request of the School, and only due to lower than anticipated enrolment figures at the School, Maths Pathway may decrease the Number of Licensed Users authorised to use the Licensed Material while this agreement is in effect, subject to the License Fee Payment Terms. The School can make this request once at the commencement of each calendar year while this agreement is in effect. This request cannot be for more than 10% of the Number of Licensed Users in the License Agreement.
4.8. If Maths Pathway agrees to decrease the Number of Licensed Users authorised to use the Licensed Material pursuant to clause 4.7., Maths Pathway may decrease or otherwise vary the License Fee in respect of the reduced number of Licensed Users.
5. Audits of usage
We will perform an annual audit of your usage to ensure that it matches, within reason, the number of students specified in the License Agreement. We may charge additional fees for extra students, or provide credits for reduced numbers of students.
5.1. Maths Pathway will conduct, on June 1 of each calendar year, an audit of the number of students registered to the School’s account on the Maths Pathway platform who have completed a test in that calendar year (the Number of Active Students).
5.2. If the Number of Active Students is different to the Number of Licensed Users, then Maths Pathway may, at its sole discretion, contact the School to inform them of the outcome of the audit.
5.3. In the event that the Number of Active Students is greater than the Number of Licensed Users, Maths Pathway may, at its sole discretion, increase the Number of Licensed Users to match the Number of Active Students, and issue an invoice to the school for additional Licence Fees based on the new number.
● This invoice will be subject to fourteen day payment terms, unless otherwise agreed to by Maths Pathway.
● This invoice will be subject to the same late payment provisions as described in clause 4.2.
5.4. In the event that the Number of Active Students is less than the Number of Licensed Users, Maths Pathway may, at its sole discretion, issue a credit note to the school for the difference. That credit note will be applied to future invoices for Licensed Users issued to the School.
6. Collection of data
We will act in accordance with relevant privacy laws, and our own Privacy Policy, when it come to handling school and student data.
6.1. This Agreement is subject to, and Maths Pathway will act in accordance with, the Maths Pathway Privacy Policy, a copy of which is accessible from the Maths Pathway website (Privacy Policy).
6.2. Subject to clause 6.1, the School acknowledges that Maths Pathway may, to the extent permitted by law, collect and use student performance and demographic data collected by use of any Licensed Material subject of this Agreement.
6.3. Except as otherwise expressly stated in this Agreement or any other agreement entered between the School and Maths Pathway, to the extent permitted by law the School retains all proprietary rights to any student data collected and may request records of such data be supplied to it by Maths Pathway upon reasonable notice.
7. Warranties and implied terms
Both Maths Pathway and the School are legally able to enter into this agreement, and will act according to its terms.
7.1. Maths Pathway warrants that:
● It has the right and authority to grant the Licence without infringing any intellectual property rights; and
● It has full corporate power to enter into this agreement with the School.
7.2 The School warrants that:
● It, its employees and students will not infringe the Licence and any of Maths Pathway’s intellectual property rights in the Licensed Material; and
● It has full capacity and power to enter into this Agreement and accept the obligations under this Agreement.
● To the extent permitted by law, any warranties or terms implied into this Agreement are expressly excluded.
8. Termination
Either party can request to terminate this agreement by providing sufficient notice. There are some
conditions under which no notice is required, if one of the parties breaks the terms of the agreement.
8.1.
Either party may terminate this Agreement on the expiration of 90 days’ written notice. If the License Agreement includes an Opt-Out Period, then the written notice from either party to terminate this Agreement is 14 days, during the Opt-Out Period, and 90 days otherwise.
8.2. If the School wishes to terminate this Agreement by written notice pursuant to this clause 8.1, it must serve Maths Pathway with an executed withdrawal form, available on request from Maths Pathway.
8.3. Maths Pathway will provide a withdrawal form to the School within seven (7) days of any request from the School.
8.4. A party that is not in default under this Agreement (Non-Defaulting Party) may terminate this Agreement immediately upon written notice if any of the following events of default occurs in respect of the other, defaulting party (Defaulting Party):
● The Defaulting Party breaches this Agreement and such breach is not remedied within 14 days of the
Non-Defaulting Party serving a written request for the breach to be remedied;
● In respect of the School, the School ceases to offer classes;
● In respect of the School’s usage of the Licensed Material, the School exceeds the Number of Licensed Users permitted to use the Licensed Material at any time by more than 5% and does not provide prior written notice to Maths Pathway;
● The Defaulting Party:
● Becomes insolvent;
● Goes into liquidation;
● Has an administrator, official manager, receiver or receiver and manager appointed;
● Enters into a scheme or arrangement with its creditors or any class of them; or
● Passes a resolution or an application to a court is taken for the winding up, dissolution, official
management or administration of that party.
9. Effect of termination
Except during the Opt-Out Period, ending this Agreement early will require a Contract Cancellation Payout, equivalent to 75% of any remaining unpaid fees across the entire Agreement, including any future years.
9.1 If the License Agreement includes an Opt-Out Period, then, if the School terminates this Agreement by written notice to Maths Pathway during the Opt-Out Period in accordance with clauses 8.1 and 8.2:
● The School will not be liable to pay any contract cancellation payout to Maths Pathway; and
● Maths Pathway will refund all amounts paid by the School in respect of this Agreement.
9.2. If a School terminates this Agreement other than in accordance with clause 9.1, a contract cancellation payout will be payable pursuant to clause 9.3.
9.3. If the School terminates this Agreement while it is in effect, except pursuant to clause 9.1 then the School must pay to Maths Pathway an early termination payment that represents a portion of the remaining unpaid value in the agreement (Contract Cancellation Payout).
9.4. In plain language, the Contract Cancellation Payout will be the sum of any unpaid licenses from the School Year in which the Agreement is terminated, plus 75% of the total amount that would have been payable in any future School Years included in this Agreement. Maths Pathway may also, at its sole discretion, recover any incentives offered as part of this Agreement, including but not limited to any discounts in License Fees applied when signing the Agreement.
9.5. Formally, the Contract Cancellation Payout will be calculated as: E + (0.75 * R) + Y, where
● E = all unpaid License Fees for the School Year in which the Agreement is terminated;
● R = the remaining value of all future payable License Fees included in this Agreement;
● Y = any incentives applied to the License Fees as part of this Agreement
9.6. The Contract Cancellation Payout will be payable by the School within fourteen (14) days of receipt of a valid tax invoice from Maths Pathway. Late payment fees (as described in clause 4.2) will apply to the Contract Cancellation Payout in the event that the School does not meet the fourteen day payment terms.
10. Action on termination
Confidential Information and Intellectual Property must be surrendered when this Agreement ends.
10.1. For the purposes of this clause, Confidential Information means information that is by its nature confidential, including the terms of this Agreement, but excluding:
● information already known to the receiving party at the time of disclosure by the other party; or
● information in the public domain other than as a result of disclosure by a party in breach of its
obligations of confidentiality under this Agreement;
10.2. For the purposes of this clause, Intellectual Property Rights means any and all intellectual property rights (whether registered or not) owned by the Licensor in relation to the Licensed Material, including copyright, trade marks, trade secrets, domain names, business or trading name, confidential information and know-how.
10.3. Upon termination of this Agreement for any reason the School, its employees and students shall:
● cease use of the Licensed Material and any associated academic content and relinquish all rights granted pursuant to the Licence; and
● relinquish possession of and deliver to Maths Pathway all materials, items, pictures, documents and notes whatsoever and in any medium relating to or incorporating Maths Pathway’s Intellectual Property Rights and Confidential Information.
10.4. Clause 10 survives termination of this Agreement.
10.5. Termination of this Agreement shall not affect any accrued rights or liabilities of either party.
11. Interpretation
11.1. In this Agreement except to the extent that the context otherwise requires:
1. words importing the singular include the plural and vice versa and words importing a gender include other genders;
2. where a word or phrase is given a particular meaning, other parts of speech or grammatical forms of that word or phrase have corresponding meanings;
3. references to a clause, License Agreement or annexure shall be construed as references to a clause of the License Agreement or annexure to this Agreement and references to this Agreement include the attached License Agreement and any annexures;
4. a reference to a party to this Agreement or any other document or Standard Terms includes its successors and permitted assigns;
5. a reference to a party shall be construed as a reference to a party to this Agreement;
6. a reference to a document or Standard Terms including this Agreement includes a reference to that document or Standard Terms as amended, novated, supplemented, varied or replaced from time to time;
7. in the interpretation of this Agreement, headings shall be disregarded;
8. references to currency shall be construed as references to Australian currency;
9. if any day appointed or specified by this for the payment of any money falls on a Saturday, Sunday or a day on which trading banks (as defined in the Banking Act 1959 (Cth)) are not open for business in Victoria (Non Business Day), the day so appointed or specified shall be deemed to be the next day which is not a Non Business Day.
10. ‘Annual Licence Fee Payable’ means the Licence Fee payable for each Licensed User of the Licensed Material per annum;
11. a reference to ‘School Term’ means:
11.1. in the case of a School located in Australia, a school term defined in accordance with the public gazetted school dates issued by the relevant Educational Authority in the State or Territory where the School is located;
11.2. in the case of a School located outside of Australia, a school term defined in accordance with the public gazetted school dates issued by the Victorian Department of Education;
12. a reference to ‘School Year’ means:
12.1. in the case of a School located in Australia, a school year as defined accordance with the public gazetted school dates issued by the relevant Educational Authority in the State or Territory where the School is located;
12.2. in the case of a School located outside of Australia, a school term defined in accordance with the public gazetted school dates issued by the Victorian Department of Education.
12. General
12.1.
Further Assurances
● Each of the parties shall sign, execute all such further documents and do all such acts, matters and things as shall be necessary or desirable to give full effect to this Agreement.
12.2.
Assignment
● No party shall assign or purport to assign any right under this Agreement without the prior written consent of the other party.
12.3.
Entire Standard Terms and Variation
●
This Agreement:
●
contains the entire
understanding of the parties as to its subject matter and there is no other
understanding, Standard Terms, warranty or representation whether expressed or
implied in any way defining or extending or otherwise relating to these provisions
of the assets or any of the matters to which this Agreement relates; and
● may only be altered in writing and signed by all parties, or as otherwise permitted by these Standard Terms.
12.4.
Counterparts
● This Agreement may be executed in any number of counterparts all of which, when taken together, shall constitute one and the same instrument.
12.5.
Waiver
●
In this Agreement:
●
The failure of a party at any
time to require full or partial performance of any provision of this Agreement
will not affect in any way the full right of that party to require that
performance subsequently;
●
The waiver of any party of a
breach of a provision of this Agreement will not be deemed a waiver of all or
part of that provision or of any other provision or of the right of that party
to avail itself of its rights subsequently; and
● Any waiver of a breach of this Agreement must be in writing signed by the party granting the waiver, and will be effective only to the extent specifically set out in that waiver.
12.6
Notices
● Any notice required or authorised to be given or served upon a party pursuant to this Deed shall be in writing and be deemed duly given or made if delivered or sent by prepaid mail to the party’s address specified in this Agreement, which shall be deemed served forty eight (48) hours following its posting.
12.7.
Modification and Severability
●
The parties agree and
acknowledge that:
●
all the provisions of this
Agreement are reasonable in all the circumstances and that each provision is
and will be deemed to be severable and independent; and
●
if all or any part of any
provision is judged invalid or unenforceable in all the circumstances, it will
be deemed to be deleted and will not affect the validity or enforceability of
the remaining provisions.
12.8.
Costs
● The parties shall bear their own costs in connection with the preparation and execution of this Agreement.
12.9.
Governing Law and Jurisdiction
●
The parties agree and
acknowledge that:
●
This Agreement is governed by
and is to be construed in accordance with the laws of the State of Victoria;
and
●
Each party irrevocably and
unconditionally submits to the non-exclusive jurisdiction of the Courts of
Victoria, and Courts entitled to hear appeals from these Courts.
12.10.
Confidentiality
●
The parties agree to keep the
terms of this Agreement confidential. This obligation shall continue after
termination of this Agreement.
12.11.
Special Conditions
●
These Terms and Conditions
incorporate, and are subject to any Special Conditions Specified in the License
Agreement.
●
In the event of any
inconsistency between any term of these Terms and Conditions and any Special
Condition, the Special Condition will apply to the extent of the inconsistency.
