Terms & Conditions

QUICKSMART TERMS FOR LITERACY AND NUMERACY RESEARCH SERVICES SUPPORT SERVICES QBSA (OZCAAS) SOFTWARE LICENCE

1 DEFINITIONS

QBSA (OZCAAS) Software means the cognitive aptitude assessment system software or equivalent software contained in the QuickSmart Literacy and Numeracy Programs and is the subject of third party intellectual property rights and licensed to SiMERR.

Confidential Information means and includes all personal, technical, proprietary, engineering and operational information (including but not limited to software programmes, source codes and object codes), drawings, techniques, processes, know-how, methods of working, data, specifications, trade secrets or other Intellectual Property, and any other information disclosed or communicated between the Parties or that a Party ought reasonably to consider as confidential, or that is marked or notified as confidential.

Intellectual Property means and includes all Confidential Information, copyright including future copyright, trade marks, designs, patents registered and unregistered, plant breeders rights, trade secrets and know-how, semiconductor or circuit layouts, and all other intellectual property as defined in Article 2 of the convention of 1967 establishing the World Intellectual Property Organisation.

Principal Investigator means the UNE employee set out in the QuickSmart Research Registration or Renewal Form who will provide the Research Services.

QuickSmart Literacy Program includes:

  • permanent licence to the QuickSmart Literacy Program resource materials;
  • a licence for the Term of the QBSA (OZCAAS) Software;
  • updates at UNE’s absolute discretion; and
  • training in the first year of implementation or as agreed between the parties.

QuickSmart Numeracy Program includes:

  • permanent licence to the QuickSmart Numeracy Program resource materials;
  • a licence for the Term of the QBSA (OZCAAS) Software;
  • updates at UNE’s absolute discretion; and
  • training in the first year of implementation or as agreed between the parties.

Report and Reporting means a report containing an analysis of data from the Research Services as described in the QuickSmart Research Registration or Renewal Form.

Research Fees mean the fees set out in the QuickSmart Research Registration or Renewal Form.

Research IP means any Intellectual Property resulting from the Research Services.

Research Services includes:

  • professional development to enable the School to implement the program;
  • test analysis showing outcomes of the program for the School;

as set out in the QuickSmart Research Registration or Renewal Form.

School means the entity purchasing the relevant services or licence set out in the QuickSmart Research Registration or Renewal Form.

SiMERR is the National Centre of Science, Information and Communication Technology, and Mathematics Education for Rural and Regional Australia, the department of UNE that administers the QuickSmart Programs.

Support Services means the assistance UNE will provide the School to implement its QuickSmart programs effectively, that is: 

  • ongoing provision of technical and program support services, e.g., a telephone and email Help desk to assist in resolving software problems and to provide advice on how to utilise the program appropriately so as to gain the maximum benefit from its use in the school;
  • analysis of QuickSmart student test data and the provision of an annual report of student outcomes; and
  • access to the QuickSmart private area of the website, accessing shared additional resources and information pertaining to QuickSmart.

Term of QBSA (OZCAAS) Software Licence means the period of the licence set out in the QuickSmart Research Registration or Renewal Form.

Term of Research Services means the period of the Research Services set out in the QuickSmart Research Registration or Renewal Form.

Term of Support Services means the period of the Support Services set out in the QuickSmart Research Registration or Renewal Form.

2 PROVISION BY UNE OF RESEARCH AND SUPPORT SERVICES

  • The School appoints UNE to undertake and provide the relevant Research Services or the Support Services and UNE accepts the appointment.
  • UNE warrants that the relevant Research Services or Support Services will be provided:
    • in accordance with these Terms;
    • in a proper and efficient manner and with due care and skill and to the best of UNE’s knowledge and expertise;
    • in accordance with all reasonable directions given by the School;
    • subject to the School’s prior written consent using only competent and qualified employees, agents and subcontractors; and
    • in compliance with all reasonable laws and standards.
    • UNE must liaise with the School in undertaking the relevant Research Services or Support Services and provide a report to the School at the end of the relevant Research or Support Services if the School requests one through the private area of the website.

3 RESPONSIBILITIES OF THE SCHOOL

3.1    The School will provide UNE with workshop attendance and contact details of each staff member participating in the professional development workshops.

3.2    The School is required to make a reasonable endeavour to ensure that its participating teachers, teacher assistants and Principal attend relevant professional development sessions.

3.3    On request by UNE, the School will furnish UNE with evaluation data including pre- and post-intervention assessment student achievement data, QBSA (OZCAAS) data and attendance data, using the online QuickSmart data upload tool.

4 TERM OF SERVICES AND OZCAAS SOFTWARE LICENCE

4.1    The Research Services must be provided during the Term of the Research Services set out in the QuickSmart Research Registration or Renewal Form.

4.2    The Support Services must be provided during the Term of the Research Services set out in the QuickSmart Research Registration or Renewal Form.

3.3    The Term of the QBSA (OZCAAS) Software Licence means the period of the licence set out in the QuickSmart Research Registration or Renewal Form.

5 FEES AND GST

  • In consideration of the provision of the relevant Research Services, Support Services, and QBSA (OZCAAS) Software Licence, the School must pay the Fees to UNE on presentation of a tax invoice payable as stated in the tax invoice and payable in the amounts and on the dates set out in the QuickSmart Research Registration or Renewal Form. UNE must pay all appropriate income taxes on the Fees.
  • The School will not pay for travel or accommodation unless specified in the QuickSmart Research Registration Form in which case reimbursement must be claimed by submission of a tax invoice and supported by original copies of receipts.
  • In relation to any goods and services tax (GST) payable for a taxable supply (as defined under GST law) by a party under this Agreement, the recipient of the supply must pay the GST subject to the supplier providing a tax invoice (as defined under GST law).
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6 INTELLECTUAL PROPERTY

  • UNE owns the QuickSmart Literacy Program, QuickSmart Numeracy Program and holds a licence (including the right to sublicence) to the OZCAAS Software
  • The ownership of the QuickSmart Literacy Program, QuickSmart Numeracy Program and QBSA (OZCAAS) Software will not be altered or transferred by its use in the relevant Research or Support Services.
    • UNE owns the Research IP and the Report
  • All rights relating to Research IP and the Report will vest in UNE. UNE retains the right to publish the analysis of the data from the Research Services. UNE will not disclose a student’s personal information or School information in a published report of the Research Services.
    • Licence to the School
  • UNE grants to the School:
    • a non-exclusive, non-transferable, permanent licence to use the relevant QuickSmart Literacy Program and/or the QuickSmart Numeracy Program for teaching, administration and non-commercial purposes set out in the QuickSmart Research Registration or Renewal Form;
    • a non-exclusive, non-transferrable licence to use the OZCAAS Software or equivalent software for teaching, administration and non-commercial purposes for the Term of the QBSA (OZCAAS) Software Licence set out in the QuickSmart Research Registration or Renewal Form.
  • The School must only use the QuickSmart Literacy Program, QuickSmart Numeracy Program and QBSA (OZCAAS) Software within the School and not copy or provide the QuickSmart Literacy Program, QuickSmart Numeracy Program or QBSA (OZCAAS) Software to another school or organisation.
  • Except to the extent permitted by relevant copyright legislation, the School must not use, copy, modify, transmit, store, publish or distribute the QuickSmart Numeracy or Literacy Program or create any other material using the QuickSmart Numeracy or Literacy Program, without obtaining the prior written consent of UNE.
  • The School may copy and utilise the QBSA (OZCAAS) Software within the School on:multiple, individual computers solely for teaching, administration and non-commercial purposes.
    • Upgrades
  • UNE, at its sole discretion, will deliver to the School upgrade packages of the QBSA (OZCAAS) Software or make updates available for downloading from QuickSmart’s private area on the website but not upgrades of the QuickSmart Numeracy or QuickSmart Literacy Program.
    • Copyright Statement
  • All content included in QuickSmart Numeracy or QuickSmart Literacy Program, such as text, graphics, logos, images, audio, reports, abstracts, downloadable items is the property of UNE or its content suppliers is protected by Australian and international copyright laws. Except as stated in the QuickSmart Numeracy or QuickSmart Literacy Program none of the content may be reproduced, distributed, republished, displayed, posted or transmitted in any form or by any means, including but not limited to electronic, mechanical photocopying or recording, without the prior express written permission of UNE.
    • Trademarks
  • QuickSmart® is a registered trademark. Trademarks (whether registered or unregistered) and logos must not be used or modified in any way without obtaining the prior written consent of UNE.

7 CONFIDENTIAL INFORMATION

  • Each Party must:
    • keep confidential the Confidential Information and the Research IP;
    • use the Confidential Information only for the purpose of the Research Services;
    • establish and maintain effective security measures to safeguard Confidential Information from access or use not authorised by this Agreement;
    • notify the other Party immediately of any suspected or actual unauthorised use or disclosure of Confidential Information; and
    • return the Confidential Information to the other Party on the earlier of the termination of this Agreement or a request by the other Party.
  • A Party may only disclose the Confidential Information if it is necessary in the proper performance of its obligations under this Agreement.
    • The obligations of confidentiality under this Agreement do not extend to information that (whether before or after this Agreement is executed):
    • is rightfully known to or in the possession or control of a Party and not subject to an obligation of confidentiality on the Party;
    • is public knowledge (otherwise than as a result of a breach of this Agreement); or
    • is required by law to be disclosed.

8 USE OF NAME

A Party must not:

  • use the name or any trademark, logo, business or company name of the other Party (whether with or without graphic or photographic or other visual material) without the prior written consent of the other Party;
  • apply for or register any trademark, business or company name containing the name of the other Party; or
  • make any inaccurate claims of association with the other Party or any of its related entities.

9 INDEMNITY AND INSURANCE

  • The School acknowledges that it uses the results of the Research Services or Support Services at its own risk.
  • UNE excludes all implied conditions and warranties except those the exclusion of which would contravene any applicable law or cause any part of this clause to be void.
  • UNE’s liability for breach of this Agreement or any non-excludable implied condition or warranty is limited to performing again that part of the Research Services or Support Services in respect of which the breach occurred.
  • The School indemnifies UNE against all expenses, losses, damages and costs (on a solicitor and own client basis and whether incurred by or awarded against UNE) that UNE may sustain or incur as a direct or indirect result of any of any claim by a third party arising out of the use of any Reports or results by:
  • the School; or
  • any person who obtains the Reports or results from the School.
  • UNE and the School will not, without the prior written consent of the other, fail to:
    • take out all necessary statutory workers’ compensation insurance and otherwise comply with all statutory workers’ compensation requirements;
    • take out and maintain a valid and enforceable public liability insurance policy of at least $10 million;
    • take out and maintain professional indemnity insurance of $10 million minimum.
    • on request by the other, provide the other, within 48 hours after that request, with evidence of the insurance cover obtained in accordance with this clause.

10 DISPUTE RESOLUTION

  • The Parties must, without delay and in good faith, try to resolve any dispute that arises out of or in connection with this Agreement prior to the commencing any legal proceedings.
  • If a Party requires resolution of a dispute it must immediately submit full details of the dispute to the Chief Executive Officer and Vice-Chancellor or equivalent party.
  • If the dispute is not resolved within 30 days of submission of the dispute to them, or longer period agreed between the Parties), then the Parties must refer it to mediation by the Australian Commercial Dispute Centre.
  • If the dispute is not resolved under this clause within 60 days after referral (or longer period agreed between the Parties) either Party may elect to terminate this Agreement.

10  TERMINATION

Termination by either Party

Either Party can terminate this Agreement at any time by giving the other Party prior written notice not less than the period set out in the QuickSmart Research Registration or Renewal Form.

Termination due to breach

Either Party may terminate this Agreement on 30 days written notice:

  • if the other Party is in substantial default or breach of any of the Terms of this Agreement and does not remedy the default or breach within 30 days of receipt of written notice specifying the nature of the default or breach;
  • In the event of circumstances beyond its control, UNE is unable to provide the Research Services.

After termination

When this Agreement terminates:

  • the School must pay UNE any due Research Fees and substantiated expenses within 30 days;
  • on request, the Parties must cease to use each other’s Intellectual Property.

Effect of termination

The termination of this Agreement by either Party does not affect any accrued rights or remedies.

12 RELATIONSHIP

         Nothing in this Agreement creates an agency, partnership, joint venture or employment relationship between the Parties or any of their respective officers, employees or contractors.

13 ASSIGNMENT

         Neither Party may assign the benefit of or its rights under this Agreement without the prior written approval of the other Party.

14 OTHER LEGAL MATTERS

Entire Agreement

  • This Agreement, including the Schedule, embodies the entire understanding and agreement between the Parties.
  • All previous agreements, negotiations, understandings, representations, warranties, memoranda, promises or undertakings not expressly set out in this Agreement will have no force or effect.

Variations
This Agreement may be varied by the Parties at any time but such a variation is not to be binding on the Parties unless it is in writing and signed by or on behalf of the parties.

Severability
If all or any part of any clause of this Agreement is illegal or unenforceable, it will be severed from this Agreement and will not affect the continued operation of the remaining provisions.

Waiver
The failure of a Party at any time to insist on performance of any obligation of the other Party under this Agreement is not a waiver of its right:

  • to insist on performance of, or claim damages for breach of, that obligation unless that Party acknowledges in writing that such failure is a waiver; or
  • at any other time to insist on performance of that or any other obligation under this Agreement.

Inconsistency
If there is any inconsistency between this Agreement and QuickSmart Research Registration or Renewal Form, then the order of precedence is:

  • QuickSmart Research Registration or Renewal Form;
  • this Agreement.

Costs

Each Party must pay its own legal costs associated with preparing and finalising this Agreement.

15 NOTICES

  • Any notice, approval, consent, report or other communication under this Agreement given by one Party on the other will be sufficiently given if sent by prepaid post, facsimile or electronic mail to the office of the Party as set out in the Details.
  • A Party that changes its address, facsimile number or electronic mail address must give notice in writing of this change to the other Party.

16 GOVERNING LAW

The proper law of this Agreement is the law of the State of New South Wales and the Parties submit to the jurisdiction of the courts of that State.

 

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