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Virtuoso Implementation Services Agreement: Terms and Conditions

This ISA is formed and is binding on execution of the ISA Details by the Parties and comprises the ISA Details, these ISA Terms and Conditions and includes the agreed Statement of Work (SOW) and all attachments and appendices.

Background

A. The Customer is a school, home school, school district, private enterprise or other educational institution or organisation that has signed the SaaS Agreement for use of the Virtuoso learning engagement platform.

B. The Customer requires professional assistance with aspects of the configuration and customisation of the Virtuoso learning engagement platform (i.e. implementation services).

1. Interpretation

In this ISA, unless the context otherwise requires, capitalised terms are as defined in the ISA Details or below:

Acceptance has the meaning given to that term in clause 4.1;

Access Credentials has the meaning given to that term in the SaaS Agreement;

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

BA refers to business analysis and change management services involving Cinglevue’s research and Product Evolution team providing guidance on implementing Virtuoso in the most efficient manner to achieve the maximum benefits for the Customer;

Business Day means a weekday that is not a public holiday in the location of the Customer;

Customer Access Facilities has the meaning given to that term in the SaaS Agreement;

DM1 refers to data migration services where the Customer is transitioning from Cinglevue’s VSIS on-premises solution to Virtuoso allowing a standard migration plan that can be tailored to the specific requirements of the Customer;

DM2 refers to data migration services where the Customer is transitioning from an existing system or systems to Virtuoso, requiring Cinglevue to analyse the Customer’s existing system(s) and prepare a bespoke data migration plan that accounts for the needs of the Customer;

Force Majeure Event means a circumstance beyond the reasonable control of Cinglevue that results in Cinglevue being unable to observe or perform on time an obligation or obligations under this ISA including:

(a) any faults, defects, incorrect operation or other circumstance affecting or relating to Customer Access Facilities; and

(b) acts of God, lightning strikes, earthquakes, floods, storms, explosions, fires, natural disasters, acts of war, acts of public enemies, terrorism, riots, civil commotion, malicious damage, sabotage, revolution, strikes, famines, large-scale epidemics and pandemics.

GST means the ‘GST’ as defined in the GST Law and any other value-added tax, additional tax, penalty, fine, interest or other charge under the GST Law or any similar law;

GST Law has the meaning given to that term in A New Tax System (Goods and Services Tax) Act 1999 (Cth);

Implementation Activities means those “Implementation Activities” listed in the ISA Details under this heading which are chosen by an “☒” in the box for that activity or those activities for which a Statement of Work (SOW) has been agreed by the Parties;

Instance has the meaning given to that term in the SaaS Agreement;

Intellectual Property Rights has the meaning given to that term in the SaaS Agreement;

ISA Details refers to the attached pages preceding these ISA Terms and Conditions under the heading Virtuoso Implementation Services Agreement: Details;

Master Config Activities has the meaning given to that term in the SaaS Agreement;

Party means a party to this ISA and Parties means both parties to this ISA;

PMO means services comprising ongoing management, co-ordination and/or planning activities carried out on behalf of the Customer (other than ad hoc services of this nature);

SaaS Term has the meaning given to the term “Term” in the SaaS Agreement;

SI refers to systems integration services involving Cinglevue’s integration team providing guidance and development support integrating information systems with the Instance as agreed between the Parties;

Super User Training means training programs designed to equip Super Users to perform the tasks of:

  • conducting relevant Implementation Activities;
  • setting up accounts and Access Credentials for Users;
  • administering accounts and Access Credentials;
  • managing content on the Instance;
  • troubleshooting common problems associated with system administration of the Instance;
  • being ‘Level 1 support’ for Users requiring assistance with using the Instance;
  • managing basic cybersecurity risks; and
  • ensuring notices and consents are obtained;

Super Users has the meaning given to that term in the SaaS Agreement;

Term has the meaning given to that term in clause 2;

Users has the meaning given to that term in the SaaS Agreement; and

Virtuoso has the meaning given to that term in the SaaS Agreement.

2. Term

This ISA commences on the Commencement Date and continues until 5 Business Days after Acceptance (Term).

3. Performance of Implementation Activities

3.1 Provided the SaaS Agreement remains on foot Cinglevue will perform the Implementation Activities.

3.2 The Customer will:

(a) ensure Cinglevue and its authorised employees, contractors and agents are provided with all information, facilities, services and access reasonably requested by Cinglevue to support performance of the Implementation Activities;

(b) ensure Cinglevue and its authorised employees, contractors and agents are provided with full and safe physical access to the Customer Access Facilities and Premises as required to perform the Implementation Activities;

(c) comply with all reasonable requests of Cinglevue associated with the performance of the Implementation Activities; and

(d) appoint (and notify Cinglevue of the) Customer project manager, if it is not the Customer Representative, to manage the Implementation Activities on behalf of the Customer, identify Customer resources that are necessary to support successful Implementation Activities and liaise with Cinglevue for the Term as required.

3.3. The Customer acknowledges that it may be required to nominate and dedicate, in addition to the project manager, an appropriate number of Customer staff or contractors to assist with the Implementation Activities to enable successful completion.

3.4. If, in the course of performing the Implementation Activities, Cinglevue forms a reasonable view that one or more of the Implementation Activities or one or more parts thereof cannot be successfully completed (Impracticable Activities) (e.g. because another information system is incompatible and cannot be integrated with the Instance), Cinglevue will notify the Customer and those Impracticable Activities need not be performed and the relevant proportion of the Charges associated with performance of those Impracticable Activities not yet incurred will be subtracted from the overall Charges.

4. User acceptance testing

4.1 The Customer may, within 10 Business Days of Cinglevue notifying the Customer of completion of the Implementation Activities, perform user acceptance tests on the Instance to ensure that the Instance’s functionality is consistent with substantial completion of the Implementation Activities.

4.2 Cinglevue is entitled to observe and participate in user acceptance testing carried out under subclause 4.1.

4.3. Acceptance will be deemed on the earlier of:

(a) written notice from the Customer to Cinglevue that it is satisfied with the Implementation Activities or that it has satisfactorily completed user acceptance testing; and

(b) 15 Business Days after Cinglevue notifies the Customer of completion of the Implementation Activities.

5. Charges

5.1 Within 5 Business Days of Commencement, Cinglevue will issue to the Customer a tax invoice for 25% of the Charges.

5.2 On or shortly after Acceptance, Cinglevue will issue to the Customer a tax invoice for the balance of the Charges.

5.3. The Customer will pay to Cinglevue the amount of each invoice issued by Cinglevue pursuant to clauses 5.1 and 5.2 (plus the applicable amount of GST as specified on the tax invoice) in accordance with the Payment Instructions within 30 days of the date of each tax invoice.

6. Materials and intellectual property

6.1. Cinglevue will retain title in and ownership of all Intellectual Property Rights associated with computer software, source code, business processes, documentation or other materials that may be used by Cinglevue in the performance of the Implementation Activities.

6.2 Where, in the course of performing the Implementation Activities, Cinglevue personnel create computer source code, business processes, documentation or other materials whether or not with input from the Customer (New Materials):

(a) the Customer acknowledges that Cinglevue is the owner of those New Materials;

(b) the Customer acknowledges that any Intellectual Property Rights in those New Materials vest in Cinglevue on and from creation; and

(c) if the Customer has fully complied with this ISA, Cinglevue grants a non-exclusive licence to the Customer for the SaaS Term to use the New Materials and Intellectual Property Rights contained therein for and together with its use of the Instance under the SaaS Agreement.

7. Liability and indemnities

7.1 Nothing in this ISA excludes, restricts or modifies any condition, warranty, right or liability implied in this ISA or protected by law to the extent that such exclusion, restriction or modification would render this ISA or any provision of this ISA void, illegal or unenforceable. Subject to that, any condition, warranty, right or liability which would otherwise be implied in this ISA or protected by law is excluded.

7.2 The Customer acknowledges and agrees that:

(a) prior to entering into this ISA it has been given a reasonable opportunity to examine and satisfy itself regarding all goods and services which are the subject of this ISA and that prior to entering into this ISA it has availed itself of that opportunity; and

(b) at no time prior to entering into this ISA has it relied on the skill or judgment of Cinglevue and that it would be unreasonable for the Customer to rely on any such skill or judgment.

7.3 Except in relation to:

(a) liability for personal injury or death;

(b) liability referred to in clauses 7.1 and 8; and

(c) liability for Cinglevue’s breach of this ISA (which the Customer agrees will be limited, for all claims in aggregate, to paying an amount equal to the Charges paid by the Customer applicable to the period in which the first claimed breach occurred),

Cinglevue will be under no liability to the Customer in respect of any loss or damage (including loss of profits, loss of goodwill, loss of data and any special, indirect or consequential loss or damage) which may be suffered or incurred or which may arise directly or indirectly in any way in connection with this ISA (including in respect of goods or services supplied pursuant to this ISA).

7.4 Without limiting the following sentence, the Customer warrants that it has not relied on any representation made by Cinglevue which has not been stated expressly in this ISA or on any descriptions, illustrations or specifications in any way relating to Virtuoso, the Instance and/or the Support Services including brochures, the website or publicity material produced by Cinglevue. The Customer acknowledges that to the extent Cinglevue has made any representation which is not otherwise expressly stated in this ISA, Customer has been provided with an opportunity to independently verify the accuracy of that representation.

7.5 The Customer will at all times indemnify and hold harmless Cinglevue and its officers, employees, contractors and agents (those indemnified) from and against any loss (including legal costs and expenses and liability) incurred or suffered by any of those indemnified arising from any claims against those indemnified where such loss or liability was caused by a breach by the Customer of its obligations under this ISA or any wilful, unlawful or negligent act or omission of the Customer.

7.6 In respect of any claim between the Parties under or in connection with this ISA, the Parties agree that to the maximum extent permitted by law, this ISA excludes the operation of any laws which would apportion any liability to Cinglevue which would not have been so apportioned but for such laws.

8. Consumer law

Pursuant to section 64A of the Australian Consumer Law:

(a) this sub-clause applies in respect of any of the goods or services supplied under this ISA which are not of a kind ordinarily acquired for personal, domestic or household use or consumption, provided that this sub-clause will not apply if the Customer establishes that reliance on it would not be fair and reasonable; and

(b) liability for breach of a guarantee conferred by the Australian Consumer Law, other than those conferred by sections 51 to 53 of the Australian Consumer Law, is limited:

(i) in the case of goods, to any one of the following as determined by Cinglevue:

(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; or

(D) the payment of the cost of having the goods repaired; and

(ii) in the case of services, to any one of the following as determined by Cinglevue:

(A) the supplying of the services again; or

(B) the payment of the cost of having the services supplied again.

9. Termination

9.1 In addition to any other right to terminate in this ISA, Cinglevue may terminate this ISA or suspend performance of its obligations under this ISA immediately by notice to the Customer in writing if:

(a) the Customer is in breach of any term of this ISA and such breach is not remedied within 7 days of it receiving notice of such breach from Cinglevue;

(b) the Customer becomes, threatens or resolves to become or is in jeopardy of becoming subject to any form of insolvency administration; or

(c) the Customer ceases or threatens to cease conducting its business in the normal manner.

9.2 On termination of this ISA:

(a) Cinglevue may:

(i) repossess any of its property in the possession, custody or control of the Customer;

(ii) retain any moneys paid by the Customer to Cinglevue; and

(iii) continue to issue tax invoices under clause 5.

9.3 Clauses 1, 5, 6, 7, 8, 9, 10, 11, 12 and 13 will survive termination of this ISA.

10. Force majeure

10.1 Cinglevue will not be liable for any delay or failure to perform its obligations under this ISA if such delay is due to a Force Majeure Event. If a delay or failure is caused or anticipated due to a Force Majeure Event, Cinglevue’s obligations will be suspended until such time as the Force Majeure Event has ended. If a delay or failure by Cinglevue to perform its obligations due to a Force Majeure Event exceeds 60 days, Cinglevue may immediately terminate the Agreement on providing notice in writing to the Customer.

11. General

11.1 Assignment: The benefit of this ISA may not be assigned by Customer without Cinglevue’s prior written consent.

11.2 Entire agreement: This ISA constitutes the entire agreement between the Parties and supersedes all prior representations, agreements, statements and understandings, whether verbal or in writing, relating to the subject matter of this ISA.

11.3 Severability: If any provision of this ISA is held invalid, unenforceable or illegal for any reasons, the Agreement will remain otherwise in full force apart from such provisions which will be read to the extent reasonably appropriate to remove the invalidity, unenforceability or illegality.

11.4 Subcontracting: Cinglevue may subcontract its obligations under this ISA to third Parties.

11.5 Variation: The provisions of this ISA will not be varied, except by agreement in writing signed by both Parties.

11.6 Waiver: No right under this ISA will be deemed to be waived except by notice in writing signed by each party. A waiver by Cinglevue will not prejudice its rights in respect of any subsequent breach of the Agreement by Customer. Any failure by Cinglevue to enforce any clause of this ISA, or any forbearance, delay or indulgence granted by Cinglevue to Customer, will not be construed as a waiver of Cinglevue’s rights under this ISA.

11.7 Execution: This ISA may be executed in counterparts by the Parties, each of which when so executed will be deemed to be an original and all of which taken together will constitute one and same agreement, provided that this ISA will have no force or effect until the counterparts are exchanged between the Parties.

12. Governing law and disputes

12.1 This ISA is governed by the laws of the State of Western Australia.

12.2 Subject to clause 12.3, the Parties submit to the jurisdiction of the courts of Western Australia including courts of appeal.

12.3 Any dispute arising between the Parties in connection with this ISA that cannot be settled by negotiation between the Parties within 21 days may only be submitted (by either Party) to arbitration at the Australian Centre for International Commercial Arbitration in accordance with its ACICA Rules 2016.

12.4 Nothing in this clause will prevent a Party from seeking urgent equitable relief before an appropriate court.

13. Notices

13.1 Notices under this ISA may be delivered by hand, by mail, by email to the relevant Party’s Address for Notices.

13.2 Notice will be deemed given:

(a) in the case of hand delivery, on written acknowledgement by an officer or other duly authorised employee, agent or representative of the receiving Party;

(b) in the case of posting, three days after despatch; and

(c) in the case of email, at the time of receipt of the email, specifically when that email enters the receiving party’s information systems.

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