This Agreement is a legally binding contract between the School and Ayra Analytics for the provision of the OctopusBI Platform, and is comprised of these Terms and Conditions and the attached Proposal. By clicking ‘I accept’, the School is agreeing to be bound by the terms of this Agreement for the duration of the term of the Agreement. The Agreement will also be applicable during a trial of the Product. If you do not agree to these Terms and Conditions, click ‘disagree/decline’.
In this Agreement the following words have the following meanings:
(a) ‘Agreement’ means this agreement, including without limitation the Proposal.
(b) ‘Authorized User’ means any person or entity that uses the OctopusBI Platform with the authorization of the School from time to time.
(c) ‘Ayra Analytics’ means Ayra Group Pty Ltd (A.C.N. - 611 902 106) and includes any Related Body Corporate of Ayra Analytics.
(d) ‘Ayra Analytics Personal Information’ includes any Personal Information of Ayra Analytics, Ayra Analytics’s Personnel, customers, prospective customers and end users of the products and services supplied under this Agreement.
(e) ‘Commencement Date’ means the date the School agrees to this Agreement.
(f) ‘Confidential Information’ means any information of a confidential nature (whether provided verbally or by way of a document or other material in human or machine readable form) which relates to Ayra Analytics or the School and includes:
(i) any information regarding the pricing or discounts offered to the School by Ayra Analytics
(ii) information regarding details of any Intellectual Property, including trademarks, patents, copyrighted materials, trade secrets, designs, drawings, know-how, plans, models, or computer software owned by or licensed to Ayra Analytics;
(iii) information which is marked as confidential by a party; or
(iv) information which the recipient knows, or ought to know, is confidential but does not include information that is, or after the date of this Agreement becomes, freely available to the public (otherwise than as a result of a breach of this Agreement).
(g) ‘Data’ means any data inputted by the School or with the authority of the School into the OctopusBI Platform.
(h) ‘Eligible Data Breach’ has the meaning given by Division 2 of Part IIIC of the Privacy Act.
(i) ‘Fees’ means the fees and charges set out in the Proposal or as amended in accordance with this Agreement from time to time.
(j) ‘Intellectual Property Right’ means any patent, trademark, service mark, copyright, moral right, right in a design, know-how and any other intellectual or industrial property rights, anywhere in the world whether or not registered.
(k) ‘Minimum Term’ means the minimum term, if any, specified in the Schedule.
(l) ‘OctopusBI Platform’ means the platform owned and operated by Ayra Analytics which assists users to analyze and predict educational outcomes or any other platform operated by Ayra Analytics from time to time.
(m) ‘Personal Information’ means information or an opinion about an identified individual, or an individual who is reasonably identifiable, whether the information or opinion is true or not and whether the information or opinion is recorded in a material form or not.
(n) ‘Personnel’ means any personnel, employee, agent, contractor, subcontractor, director, officer, secondee or representative of a party.
(o) ‘Privacy Act’ means the Privacy Act 1988 (Cth).
(p) ‘Privacy Legislation’ means the Privacy Act, the Spam Act 2003 (Cth), any registered APP Code that binds a party and any other laws, industry codes and policies relating to the handling of Personal Information.
(r) ‘Proposal’ means the Proposal attached to these Terms and Conditions and/or set out in the School’s online user portal as varied from time to time.
(s) ‘Related Body Corporate’ has the meaning given to that term in section 50 of the Corporations Act 2001 (Cth).
(t) ‘School’ means the school or educational institution entering into this Agreement.
1.2 In this Agreement, unless the contrary intention appears:
(a) a reference to this Agreement or another instrument includes any variation or replacement of either of them;
(b) a reference to a statute, ordinance, code or other law includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements of any of them;
(c) the singular includes the plural and vice versa;
(d) the word person includes a firm, a body corporate, an unincorporated association or an authority;
(e) a reference to a person includes a reference to the person’s executors, administrators, successors, substitutes (including, but not limited to, persons taking by novation) and assigns;
(f) 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 to that day; and
(g) a reference to a day is to be interpreted as the period of time commencing at midnight and ending 24 hours later.
This Agreement will commence on the Commencement Date and will continue until terminated in accordance with clause 12.
3.1 Subject to the terms of this Agreement, during the term of this Agreement Ayra Analytics grants the School and its Authorised Users a license to use the OctopusBI Platform. This right is non-exclusive, non-transferable, and limited by and subject to the terms of this Agreement.
3.2 Where the OctopusBI Platform contains, or otherwise incorporates third-party software or open source material it may contain copyright or other legal notices (Special Notices). The School must not delete, modify or alter those Special Notices. In the event of any inconsistency between this Agreement and a license associated with an open-source component, the relevant open-source component license will take precedence (but solely with respect to the open-source component(s)). For example, where an open-source component license permits use of that open-source component in a manner otherwise restricted under this Agreement, You are entitled to use the open-source component as permitted under its associated license.
3.3 Where you alter the script (code) or any other electronic file associated with the OctopusBI Platform (‘Altered Component’), you do so at your own risk and liability, and you acknowledge that you are wholly responsible for, and warrant you will comply with, the terms of any license(s) applicable to that Altered Component, including, but not limited to, payment of any applicable license fees triggered by enabling features subject to a commercial license, arising from any such foregoing action by you; and you agree to indemnify and compensate Ayra Analytics for any loss or damage suffered by Ayra Analytics for any breach of said warranty.
4.1 The School agrees that, subject to any applicable laws:
(a) the School and its Authorized Users must only use the OctopusBI Platform for the School’s lawful internal business purposes, in accordance with this Agreement:
(b) the School will be responsible for determining who is an Authorized User and what level of access to the OctopusBI Platform each Authorized User will have;
(c) the School must not provide false information when registering or changing its registration details or when nominating its Authorised Users;
(d) the School will be given or must select individual login credentials for the OctopusBI Platform and login credentials are confidential to each Authorised User, must not be shared and must be kept confidential;
(e) the School and its Authorized Users must immediately notify Ayra Analytics of any unauthorized use of login credentials or any other breach of security. Where a breach of security occurs Ayra Analytics may reset the relevant login credentials and the School must take all other actions that Ayra Analytics reasonably deems necessary to maintain or enhance the security of the OctopusBI Platform;
(f) the School is responsible for all Authorized Users’ use of the OctopusBI Platform;
(g) the School must control each Authorized User’s level of access to the OctopusBI Platform at all times;
(h) the School and its Authorised Users must not attempt to undermine the security or integrity of the OctopusBI Platform, its computing systems and its networks or, where the OctopusBI Platform is hosted by a third party, that third party’s computing systems and networks;
(i) the School and its Authorised Users must not use, or misuse, the OctopusBI Platform in any way which may impair the functionality of the OctopusBI Platform, or other systems used to deliver the OctopusBI Platform or impair the ability of any other user to use the OctopusBI Platform;
(j) the School and its Authorized Users must not attempt to gain unauthorized access to any materials other than those to which the School has been given express permission to access or to the computer system on which the OctopusBI Platform are hosted;
(k) the School and its Authorized Users must not transmit, or input into the OctopusBI Platform, any: files that may damage any other person’s computing devices or software, content that may be offensive, or material or Data in violation of any law (including Data or other material protected by copyright or trade secrets which the School does not have the right to use);
(l) the School and its Authorized Users must not use the OctopusBI Platform or any communication tool available on the OctopusBI Platform for posting or disseminating any material unrelated to the use of the OctopusBI Platform, including (but not limited to): offers of goods or services for sale, unsolicited commercial e-mail or content that may be offensive to any other users of the OctopusBI Platform;
(m) when a School and its Authorized Users make any communication on the OctopusBI Platform, the School represents that it is permitted to make such communication and the School recognizes that Ayra Analytics is under no obligation to ensure that the communications on the OctopusBI Platform are legitimate or that they are related only to the use of the OctopusBI Platform, however, Ayra Analytics reserves the right to remove any communication at any time in its sole discretion; and
(n) the School agrees to accept sole responsibility for the legality of its actions and the actions of its Authorized Users under the laws which apply to the School and its Authorized Users. The School agrees that Ayra Analytics, its directors, officers, employees, agents, contractors, successors, assignees and suppliers have no responsibility for the legality of the School’s actions and the actions of its Authorized Users.
4.2 Use of the OctopusBI Platform may be subject to limitations, including but not limited to giving access to third-party providers to integrate with the OctopusBI Platform. Any such limitations will be advised from time to time.
Data Storage and Back-Ups
4.3 The School grants to Ayra Analytics a license to use, copy, transmit, store, and back-up its information and Data for the purposes of enabling the School and its Authorized Users to access and use the OctopusBI Platform and for any other purpose related to provision of the OctopusBI Platform to the School.
4.4 Without limiting the foregoing, the School agrees that Ayra Analytics may collect and use technical information in order to provide support services related to the Product. This may include:
(a) Ayra Analytics remotely accessing the School’s systems; or
(b) the School sending information or system data to Ayra Analytics.
4.5 The School must maintain copies of all Data inputted into the OctopusBI Platform. Ayra Analytics adhere implements policies and procedures to prevent data loss, but does not make any guarantees that there will be no loss of Data. Ayra Analytics expressly excludes liability for any loss of Data no matter how caused.
5.1 In consideration for using the OctopusBI Platform, the School must pay to Ayra Analytics the Fees plus any applicable GST, which are calculated in accordance with the manner specified in the Proposal.
5.2 Unless stated otherwise, all Fees quoted are exclusive of GST.
5.3 Ayra Analytics will issue the School with a Tax Invoice in respect of the Fees in accordance with the GST Act. Subject to receipt of an invoice in accordance with this clause, the School must pay the Fees plus any GST within 14 days of receipt of the Tax Invoice.
5.4 This Agreement will come into effect upon the consent of both Parties. Any changes to the Agreement can be made only in writing signed by authorised representatives of Ayra Analytics and the School, and will then become part of this Agreement. Any changes that are agreed may result in a variation of the fees payable by the School or result in a delay or suspension in the delivery of the services provided by the OctopusBI Platform.
5.5 All services provided will be provided during standard Australian working hours (8:30 am to 5:00 pm EST). Where the School requires work to be completed outside of these hours, it will be charged at the rate of 1.5 x Ayra Analytics' current rate or as mutually agreed in writing.
6.1 The School may determine what level of access each Authorised User has to its Data.
6.2 The School will be provided with access to read-only data from the data warehouse created by Ayra Analytics.
7.1 Unless the relevant Party has the prior written consent of the other Party or unless required to do so by law:
(a) each party will preserve the confidentiality of all Confidential Information of the other obtained in connection with this Agreement; and
(b) neither party will, without the prior written consent of the other, disclose or make any Confidential Information available to any person, or use the same for its own benefit, other than as contemplated by this Agreement.
7.2 The obligations of confidentiality contained in this clause do not apply to any information which:
(a) is or becomes public knowledge other than by a breach of this Agreement;
(b) is received from a third party who lawfully acquired it and who is under no obligation restricting its disclosure;
(c) is in the possession of the receiving party without restriction in relation to disclosure before the date of receipt from the disclosing party; or
(d) is independently developed without access to the Confidential Information.
7.3 The obligations imposed under this clause will survive the termination of this Agreement.
Privacy and data security
7.4 If the School:
(a) is an entity regulated under the Privacy Legislation, the School must comply with the Privacy Legislation; or
(b) is not an entity regulated under the Privacy Legislation, the School must:
(i) comply with the Privacy Legislation as if it were an entity regulated under the Privacy Legislation; and
(ii) not do any act, engage in any practice, or omit to do any act or engage in any practice that would result in a breach of the Privacy Legislation if the Privacy Legislation applied to those things done, engaged in or omitted to be done by the School.
7.6 The School must take all necessary steps to ensure that Ayra Analytics Personal Information is securely stored and is protected against misuse, corruption, loss, unauthorised access, modification, interference, deletion or disclosure.
7.7 Clauses 7.7, 7.8 and 7.9 apply if:
(a) there is any unauthorised access to, or unauthorised disclosure of, any Ayra Analytics Personal Information held by the School; or
(b) any Ayra Analytics Personal Information held by the School is lost in circumstances where unauthorised access to, or unauthorised disclosure of, Ayra Analytics Personal Information is likely to occur,
(a Data Breach).
7.8 If, during the term of this Agreement, the School becomes aware of a Data Breach, the School must:
(a) notify Ayra Analytics in writing as soon as it becomes aware of such Data Breach;
(b) as soon as reasonably practicable:
(i) undertake an investigation to determine the extent to which the Data Breach concerns any Ayra Analytics Personal Information; and
(ii) provide the results of the investigation to Ayra Analytics in writing, including the details of, and the circumstances giving rise to, the Data Breach and any additional information requested by Ayra Analytics in relation to the Data Breach;
(c) immediately take all necessary steps to:
(i) remedy such Data Breach; and
(ii) prevent or mitigate any consequences, including any serious harm (as referred to in the Privacy Act) to any affected individuals; and
(d) comply with all directions of Ayra Analytics in relation to the Data Breach in respect of Ayra Analytics Personal Information.
7.9 In respect of any Data Breach concerning any Ayra Analytics Personal Information, and without limiting each party's obligations under the Privacy Legislation, including in respect of Divisions 2 and 3 of Part IIIC of the Privacy Act, the parties agree that Ayra Analytics shall have sole control over:
(a) determining whether such Data Breach amounts to an Eligible Data Breach;
(b) carrying out any assessment of a suspected Eligible Data Breach required by the Privacy Act, and the School must cooperate with Ayra Analytics in relation to any such assessment;
(c) preparing any statement of notification required by the Privacy Act, the School must cooperate with Ayra Analytics in relation to any such statement; and
(d) carrying out any notification required by the Privacy Act, and the School must cooperate with Ayra Analytics in relation to any such notification.
7.10 The School indemnifies Ayra Analytics against any loss or damage incurred or suffered by Ayra Analytics that arises as a result of or in connection with any breach of clauses 7.4 to 7.9 by the School or its Personnel. The parties agree that the limitations and exclusions of liability set out in this Agreement (if any) do not apply to the indemnification obligations contemplated in this clause 7.10. This clause 7.10 survives termination or expiry of this Agreement.
Intellectual Property Rights
8.1 The OctopusBI Platform and all content forming part of the OctopusBI Platform, including without limitation all photographs, images, designs, information, user manuals, interfaces, text, graphics, brand names, logos, and trademarks, are protected by copyright, trademark, and other intellectual property laws. The School acknowledges and agrees that Ayra Analytics owns, control or has licensed all legal right, title and interest in and related to the OctopusBI Platform, including all Intellectual Property Rights.
8.2 The School and its Authorised Users may not:
(a) modify or copy the layout or appearance of the OctopusBI Platform or any computer software or code contained in the OctopusBI Platform or the Service; and/or
(b) decompile or disassemble, reverse engineer or otherwise attempt to discover or access any source code related to the OctopusBI Platform or the Service.
8.3 Except where permitted under the Australian Copyright Act 1968 (Cth) or other applicable laws, and except for the temporary copy held in the cache of any Authorised User’s computer, any of the OctopusBI Platform’s content (including any substantial part of them) must not otherwise be used, stored, copied reproduced, published, altered, adapted, distributed, printed, displayed, transmitted or commercialised in any form or by any means in whole or part without Ayra Analytics’s prior written consent.
8.4 Title to, and all Intellectual Property Rights in, the Data remains the property of the School and, where applicable, the Authorised User who entered that Data. However, the School acknowledges that its access to the Data is contingent on full payment of the Fees as and when they are due.
Ayra Analytics and the School agrees that, during the period of this Agreement for a period of one year following completion of this Agreement, both parties will not employ, make an offer of employment to, or enter into a consulting relationship with any employee of the other with whom they had direct or indirect contact as a result of this Agreement.
10.1 To the maximum extent permitted by law, Ayra Analytics excludes all liability and responsibility to the School (or any other person including without limitation the School’s Authorised Users and students) in contract, tort (including negligence), or otherwise, for any loss (including without limitation loss of an indirect or consequential nature) or damage resulting, directly or indirectly, from any use of, or reliance on, the OctopusBI Platform. Any reliance the School places on, or any act done based on or in response to, the content of the OctopusBI Platform will be at the School’s own risk. The School indemnifies and releases Ayra Analytics against any claim for loss or damage of any kind suffered by any person as a result of the School’s use or reliance on the OctopusBI Platform or its contents.
10.2 Notwithstanding the above and notwithstanding any other provision in this Agreement, Ayra Analytics does not purport to restrict, modify or exclude any liability that cannot be excluded under the Australian Consumer Law, the Competition and Consumer Act 2010 (Cth) or the Fair Trading Acts in each of the States and Territories of Australia.
10.3 Where any condition, warranty or right is implied by law, or there is a statutory consumer guarantee that cannot be excluded, Ayra Analytics limits its liability for breach of, or other act contrary to, that implied condition, warranty or right or statutory consumer guarantee, either as provided under section 64A of the Australian Consumer Law in Schedule 2 to the Competition and Consumer Act 2010 (Cth) or otherwise to the extent permitted by law.
10.4 Without limiting the foregoing, to the extent permitted by law, Ayra Analytics limits its liability in respect of any claim to, at its option:
(a) in the case of goods:
(i) the replacement of the goods or the supply of equivalent goods;
(ii) the repair of the goods;
(iii) the payment of the cost of replacing the goods or of acquiring equivalent goods; or
(iv) the payment of having the goods repaired, and
(b) in the case of services:
(i) the supply of the services again; or
(ii) the payment of the cost of having the services supplied again.
The School will at all times indemnify Ayra Analytics, its officers, directors, employees, contractors, agents, assignees, successors and suppliers (Indemnified Parties), and keep the Indemnified Parties indemnified against any loss (including legal costs and expenses) or liability incurred or suffered by the School, the School’s Authorised Users or by the Indemnified Parties arising from any claim, demand, suit, action or proceeding by any person against the School, the School’s Authorised Users or an Indemnified Party where such loss or liability arose out of, in connection with or in respect of the School’s conduct, or the conduct of the School’s Authorised Users, or breach of this Agreement including without limitation the warranties provided by the School.
12.1 The minimum term for this agreement is 12 months from the day of accepting the agreement.
12.2 This Agreement can be terminated on the provision of 30 days written notice after the minimum term.
12.3 Notwithstanding the above, Ayra Analytics may in its sole discretion terminate this Agreement and use of the OctopusBI Platform, suspend for any definite or indefinite period the use of the OctopusBI Platform or suspend or terminate access to all or any of the Data by notice to the School if:
(a) the School have committed a breach of this Agreement that is incapable of remedy; or
(b) the School has committed a breach of this Agreement that is capable of remedy (including without limitation non-payment of any Fees) but have failed to remedy that breach within 10 days of receipt of notice requiring the School to do so; or
(c) the School or its business becomes insolvent, goes into liquidation, has a receiver or manager appointed over any of its assets, makes any arrangement with its creditors, or become subject to any similar insolvency event in any jurisdiction.
12.4 Notwithstanding the above, the School may terminate this Agreement if:
(a) Ayra Analytics has committed a breach of this Agreement that is incapable of remedy; or
(b) Ayra Analytics has committed a breach that is capable of remedy but it has failed to remedy that breach within 10 days of receipt of notice requiring Ayra Analytics to do so; or
(c) Ayra Analytics becomes insolvent, goes into liquidation, has a receiver or manager appointed over any of its assets or if it makes any arrangement with its creditors.
12.5 If this Agreement or the School’s access to the OctopusBI Platform is terminated or suspended, the School and its Authorised Users must not access, browse, visit or use the OctopusBI Platform.
12.6 Termination of this Agreement is in all cases without prejudice to any rights and obligations of the parties accrued up to and including the date of termination. On termination of this Agreement the School will:
(a) remain liable for any accrued charges and amounts which become due for payment before or after termination; and
(b) immediately cease to use the OctopusBI Platform.
13.1 Clauses 7 to 13 (inclusive) survive the expiry or termination of this Agreement.
13.2 This Agreement supersede and extinguish all prior agreements, representations (whether oral or written), and understandings and constitutes the entire agreement between the parties relating to the matters dealt with in this Agreement.
13.3 A failure or delay by Ayra Analytics to exercise a power or right under this Agreement does not constitute as a waiver of that power or right, and the exercise of a power or right by Ayra Analytics does not preclude Ayra Analytics’s future exercise or the exercise of any power or right by or on behalf of Ayra Analytics.
13.4 If a provision of this Agreement is declared or determined by any court to be void, invalid or unenforceable at law, that provision is hereby severed from and deemed not to be part of this Agreement, and the remaining provisions will continue to apply with such deletions or modifications as necessary to make them valid, effective and enforceable. Removal of any provision of this Agreement will not affect the validity of what remains.
13.5 Nothing contained or implied in this Agreement creates a relationship of partnership, employment, agency or trust. Neither party has the authority to bind the other party in any way.
13.6 This Agreement are governed by, construed and enforced in accordance with the laws of New South Wales, Australia. Disputes arising from this Agreement are exclusively subject to the jurisdiction of the courts of New South Wales, Australia.
13.7 The School may not assign or transfer any rights to any other person without Ayra Analytics’s prior written consent.
13.8 Ayra Analytics may assign the benefit of this Agreement on the provision of written notice to the School.
13.9 Any notice given under or in connection with the Agreement:
(a) must be in writing and signed by a person duly authorised by the sender;
(b) must be addressed and delivered to the intended recipient by hand, by prepaid post or by email at the address or email address last notified by the intended recipient to the sender; and
(c) is taken to be given and made:
(i) in the case of hand delivery, when delivered;
(ii) in the case of delivery by post, 3 business days after the date of posting (if posted to an address in the same country) or 7 business days after the date of posting (if posted to an address in another country);
(iii) in the case of an email, on the day and at the time it is deemed by law to have been received, but this clause does not limit the way in which a notice can be deemed to be served under any law.
13.10 If this Agreement is not subject to a Minimum Term or the Minimum Term has expired, Ayra Analytics may in its sole discretion amend this Agreement on the provision of 30 days written notice to the School.
13.11 If this Agreement is subject to a Minimum Term and that Minimum Term has not expired, this Agreement may be amended on the provision of notice by Ayra Analytics, to take effect from the completion of the Minimum Term or on the expiration of 30 days from the date when the notice was given (whichever occurs last).