General Terms & Definitions
Definitions
“Agreement” has the meaning set out in the General Terms.
“aXcelerate” means The Verner-Mackay Group Pty Ltd trading as ‘aXcelerate’ and all future global subsidiaries of The Verner-Mackay Group Pty Ltd.
“Business Days” means Monday to Friday, 8:30 am – 5:00 pm Australian Eastern Standard Time (AEST) except for public holidays.
“Commencement Date” means the date that the Initial Term under this Agreement commences. It is the same date that You receive Your initial invoice from Us.
“Confidential Information” includes all information exchanged between the parties to this Agreement, whether in writing, electronically or orally, including the Service but does not include information which is, or becomes, publicly available other than through unauthorised disclosure by the other Party.
“Consultant” means either an aXcelerate Onboarding Consultant/Trainer (an employee of aXcelerate) or aXcelerate Partner (sub-contractor of aXcelerate).
“Data” means any data inputted by You or with Your authority into the Website.
“Defined Terms” refers to these Definitions.
“Dispute Notice” means a notice issued by one Party to the other Party giving notice of the dispute and the reasons for that dispute which are to be resolved within a fair and reasonable timeframe of the giving of the Dispute Notice.
“Fees” means aXcelerate’s Fees as set out in the Schedule and other Agreements executed between You and Us.
“Force Majeure Event” means an act of God, national emergency, insurrection, riot, war or industrial action.
“Full Qualification” means a course that takes more than thirty days to deliver.
“Go Live” means that Our implementation obligations have been fulfilled as set out in the General Terms and the Schedule.
“GST” means a goods and services tax, or similar value-added tax, levied or imposed under tax Laws.
“Implementation Services” means Onboarding Services, Data Migration Services, and Online Enrolment Services in the collective.
“Initial Term” means the initial committed duration of this Agreement as defined in the Schedule or a minimum 12 months from the Commencement Date, if not expressly defined therein.
“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.
“Invited User” means any person or entity, other than the Subscriber, that uses the Service with the authorisation of the Subscriber from time to time.
“Law” or “Laws” means any law applicable including legislation, ordinances, regulations, by-laws and other subordinate legislation.
“Licence Fee” means the price (excluding any taxes and duties) payable by You in accordance with the Schedule and other Agreements executed between You and Us.
“Long Course” means a course that takes more than thirty days to deliver.
“Material” means material in any form, including documents, reports, products, equipment, information, data, software, software tools and software development methodologies.
“Party” means aXcelerate and You, as the context requires.
“Personal Information” means information or an opinion (including information or an opinion forming part of a database), whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion which aXcelerate gains access to in the course of providing the Service.
“Privacy” means collection, handling, security and protection of personal, organisational and/or Party-related information including but not limited to aXcelerate user and/or database Records, files, mail, emails, documents, telephone conversations or Records, other forms of communication and/or other system-related information.
“Privacy Laws” means the Privacy Act 1988 (Cth), the Spam Act 2003 (Cth) and any other laws relating to Privacy.
“Product” has the meaning set out in the Product Description of each Product.
“Professional Services” means the paid delivery of services by Us to You that are not in scope of the Subscription Package.
“Records” means all material including but not limited to books, documents, information, computer software, equipment, and data stored by any means disclosed, or made available, by You to aXcelerate in connection with the performance of this Agreement.
“Release Notes” means the method of communication of new features, improvements and bug fixes.
“Renewal Term” means extending the Agreement for an additional duration as defined in the Schedule or a minimum 12 month period from the end of the Initial Term or any subsequent Renewal Term, if not expressly defined therein.
"Schedule" means the contract particulars for Your Agreement:
- The Product(s) and Service(s) selected by You (‘Subscription Package’);
- The selection of licensing tier(s) based on estimates Provided by You of the number of learners that will login to the Product(s) per annum by course type ;
- Fees for the Subscription Package based on the selected licensing tier(s);
- Rate cards for exceeded licensing limits within the selected tier(s);
- Rate cards for alternative licensing tiers;
- Term information that includes the duration of the Initial Term, the number and duration of Subsequent Terms, and the renewal procedure;
- Reference to any Professional Services Statement of Work (if any);
- Number of Implementation Services hours purchased;
- Number of Service Delivery Manager hours purchased (if applicable); and
- Any special terms or conditions agreed between the Parties.
“Service” has the meaning set out in the Service Description of each Service.
“Service Year” means the period of time from the Commencement Date to its anniversary. Each Service Year anniversary then marks the beginning of the new Service Year.
“Short Course” means a course that takes less than thirty days to deliver.
“Short Course Commencement” has the meaning set out in this Article.
“Statement of Work” means a formal document that sets out the basis of a Professional Services engagement.
“Subscriber” means the person who registers to use the Service, and, where the context permits, includes any entity on whose behalf that person registers to use the Service.(including any fine or penalty) that may be levied, assessed, charged or collected.
“Subscription Package” means the Product(s) and Service(s) selected by You as set out in the Schedule and is inclusive of the Implementation Services.
“Terms” refers to the Agreement.
“Term” means the Initial Term and any Renewal Terms (if entered into).
“You” means the Subscriber, and where the context permits, an Invited User. “Your” has a corresponding meaning.
“Your Data” means any data, content, code, video, images or other materials of any type that you upload, submit or otherwise transmit to or through aXcelerate.
General Terms
- Binding Agreement
1.1. Thank you for selecting the Services offered by aXcelerate and/or its subsidiaries and affiliates (referred to as ‘aXcelerate’, ‘we’, ‘our’, or ‘us’).
1.2. This is a legal agreement (‘Agreement’) between You and aXcelerate that defines aXcelerate’s obligations as a service provider and Your obligations as a customer.
1.3. You acknowledge that You have read and understood this Agreement. - Incorporation
2.1. This Agreement sets out the general terms and conditions (‘General Terms’) that will apply regardless of the Service inclusions chosen by You and as set out in the Schedule.
2.2. This Agreement incorporates the:
2.2.1 Schedule that sets out the service inclusions selected by You (‘Subscription Package’) and the Fees;
2.2.2. Additional terms and conditions (‘Additional Terms’) applicable to each service inclusion in Your Subscription Package;
2.2.3. Related materials, including but not limited to Our Privacy Policy; and
2.2.4. Defined Terms that are referenced in the above. - Authority to Execute
3.1. You represent that You have the authority to enter into this agreement.
3.2. You represent that You agree with the terms and conditions of this Agreement in full upon execution. - Due Diligence
4.1. You represent that You have undertaken due diligence to determine that the Subscription Package meets Your requirements.
4.2. You acknowledge that The Subscription Package is provided As-Is. - Payment of Fees
Initial Term Commences on Receipt of Initial Invoice
5.1. You will receive Your initial invoice from Us after We have:
5.1.1. Provisioned for You an environment to access the aXcelerate products that constitute Your Subscription Package; and
5.1.2. Provided to You access credentials.
5.2. Receipt by You of Your initial invoice from Us constitutes commencement of the Initial Term under this Agreement (‘Commencement Date’).
Notification of Fees & Payment Period
5.3. aXcelerate will provide the Subscription Package for the Fees set out in the Schedule and any Statements of Work executed during the Term.
5.4. aXcelerate will provide You with an invoice for payment of the Fees.
5.5. You agree to pay the invoice within 30 days of receipt.GST Exclusive
5.6. Any amount referred to in this Agreement is exclusive of GST unless indicated otherwise.
Consequences of Failure to Pay
5.7. Your aXcelerate account will be suspended if You do not make payment of Your invoice by 5:00pm AEST on the 21st day after the invoice due date.
5.8. Your aXcelerate account will be reactivated following receipt of bank remittance advice of payment or actual payment, whichever is the sooner.
5.9. A reactivation fee will apply and is calculated at 10% of the monthly Fees for your Subscription Package.Consequences of Suspension of You by Us for Cause
5.10. You will continue to be charged the Fees during a period of suspension for cause. aXcelerate has no liability to You for removing or deleting Your Data from or suspending Your access to the Service.
Additional Provisions for Implementation Services
5.11. Fees for Implementation Services are:
5.11.1. A once-off and not a recurrent cost; and
5.11.2. Provided on application as a fixed-price for fixed-effort quote; and
5.11.3. Calculated on the basis of remote delivery.
5.12. Implementation Service hours that have been purchased as part of Your Service Agreement will expire within six (6) months from your aXcelerate account Commencement Date. You must use up your purchased Implementation Service hours within the expiry period to avoid losing part or all of these hours.
5.13. When Online Enrolment Services are provided as:
5.13.1. Implementation Services, the fees payable are estimated prior to execution of this Agreement and are delivered under a fixed price for fixed effort commercial model.
5.13.2. Professional Services, the fees payable are estimated prior to execution of the associated Statement of Work and are delivered under a time-and-materials to a ceiling commercial model.
5.14. Variation to the fees payable may be required in the event that Your needs exceed initial estimates for the Implementation Services. We will provide reasonable notice to You if we believe such estimates are at risk of being exceeded. - Implementation Services
Mandatory and Optional Inclusions
6.1. All implementations of aXcelerate require Implementation Services to ensure Your business readiness to use aXcelerate products and services before Go-Live. This applies to both new and returning customers.
6.2. Implementation Services include Onboarding Services, Data Migration Services, and Online Enrolment Services:
6.2.1. Onboarding Services are always required.
6.2.2. Data Migration Services are always required where You are an accredited Registered Training Organisation (‘RTO’) as defined in the associated legislation and regulations in Australia and were trading prior to the engagement of Us as set out in this Agreement.
6.2.3. Online Enrolment Services are optional.
Completion of Implementation Services
6.3. Implementation Services cease after one of the following events has occurred:
6.3.1. Consumption of all purchased hours for Implementation Services; or
6.3.2. Go-Live; or
6.3.3. As defined in Payment of Fees.Purchase of Additional Implementation Services
6.4. Additional paid Implementation Services can be requested either as:
6.4.1. A variation to this Agreement if pre Go-Live; or
6.4.2. As Professional Services under a Statement of Work if post Go-Live.Customer Supplied Items
6.5. The Implementation Services delivered by Us require that Customer Supplied Items are delivered by You. Such Customer Supplied Items will include (but not limited to):
6.5.1 Responding to questions from the aXcelerate Onboarding Consultant;
6.5.2. Attending training sessions; and
6.5.3. Provision of Your Contact Data and AVETMISS Data; and
6.5.4. Product configuration by You in accordance with the direction provided by Us through Our Onboarding Consultant and other materials made available by Us to You. Such configuration will include (but not be limited to) configuration of Your user accounts by Your nominated admin user; and
6.5.5. Verification by You through testing that the Product meets Your requirements before Go-Live. For avoidance of doubt, an omission by You to provide such verification of the Implementation Services will constitute acceptance within four (4) weeks from the finalisation of Implementation Services by Us as defined in the Implementation Plan. - Onboarding Services
Service Description
7.1. aXcelerate will assign You an Onboarding Consultant who will:
7.1.1. Coordinate and facilitate an onboarding planning meeting;
7.1.2. Jointly develop an Implementation Plan with You;
7.1.3. Initiate delivery of the Implementation Plan;
7.1.4. Coordinate migration of Your Data;
7.1.5. Provide advice on best practice setup and configuration of aXcelerate Product(s) to support the Online Enrolment Feature;
7.1.6. Deliver training aligned to Your business needs.
7.2. We will determine the Onboarding Consultant(s) to be assigned.
7.3. We may change the assigned Onboarding Consultant(s) at Our sole discretion. - Data Migration Services
Service Description
8.1. Data Migration Services are provided to import Your Data into aXcelerate.
8.2. Your Data will include Contact Data and AVETMISS Data.
8.3. Your Data may include some, all, or none of the following:
8.3.1. Organisational details;
8.3.2. Notes;
8.3.3. Qualifications;
8.3.4. Award information.
8.4. Data Migration Services do not include the import of files or attachments into aXcelerate.
Contact Data
8.5. Contact Data includes contact, student or employer record information such as:
8.5.1. Name;
8.5.2. Organisation or employer;
8.5.3. Contact information such as phone number, email address, and physical location address; and
8.5.4. Date of birth.
8.6. Contact Data will be provided by You in a format that is determined by Us;
8.7. The Contact Data You provide to Us will be complete, current, correct, and clean. We reserve the right to charge additional Fees or to reject the Data provided where it is not migration ready.
8.8. Contact Data does not include any linkage to course information, enrolments, outcomes, assessments, or any other data elements.
AVETMISS Data
8.9. AVETMISS Data that You provide to Us must be compliant with the national AVETMISS statistical data standard.
8.10. You agree to not provide Your AVETMISS Data to Us for use in the Data Migration Services until you have validated Your AVETMISS Data using the online AVETMISS Validation Service provided by NCVER.
8.11. You agree to fully validate Your imported AVETMISS Data in the Staging Environment prior to Us migrating that dataset to the Production Environment.
8.11.1. You agree to have remediated any and all errors set out in the NCVER Data Validation Report. - Online Enrolment
Service Description
9.1. aXcelerate's Online Enrolments Feature (“OEF”) provides functionality to support digital enrolments and enquiries.
9.2. The OEF exchanges defined data types between aXcelerate Products and WordPress.
9.3. The WordPress plugin can be configured to:
9.3.1. Retrieve course and schedule data from aXcelerate Products to display on Your WordPress website on the pages You have made available to Us;
9.3.2. Provide a form for course applicants to complete as part of an application lodgement or course booking; and
9.3.3. Provide a form for prospective and actual applicants to complete in order to lodge an enquiry.
Service Options
9.4. aXcelerate offers two (2) Online Enrolment Services:
9.4.1 Online Enrolment Essentials; and
9.4.2. Online Enrolment Advanced.Inclusions in the Online Enrolment Essentials Option
9.5. Online Enrolment Essentials includes the following:
9.5.1. Course Listing and Course Details;
9.5.2. Course Instance Lists;
9.5.3. Two (2) pre-configured AVETMISS-compliant enrolment forms;
9.5.4. One (1) enquiry form
9.5.5. One (1) payment gateway integration; and
9.5.6. Up to ten (10) configuration changes.
Inclusions in the Online Enrolment Advanced Option
9.6. Online Enrolment Advanced includes everything in the Online Enrolment Essentials option and the following additional inclusions:
9.6.1. Two (2) additional pre-configured AVETMISS-compliant enrolment forms;
9.6.2.Up to twenty (20) courses mapped to Your unique forms;
9.6.3. Ten (10) course categories;
9.6.4. Up to ten (10) additional configuration changes;
9.6.5. Events calendar; and
9.6.6. Enrolment resumption function.
Online Enrolment Plan
9.7. Online Enrolment Services require development of an Online Enrolment Plan that will set out project scope and define clear deliverables, roles, and responsibilities.
Acknowledgements
9.8. You acknowledge that:
9.8.1 Deviation from scope may be refused or incur additional Fees;
9.8.2. aXcelerate maintains the WordPress plugin; and
9.8.3. All website maintenance and hosting will be provided by You and is not a service offered by Us.
Customer-Supplied Items
9.9. You will source, implement, configure, and manage a WordPress environment that meets Our Minimum WordPress System Requirements, which will be provided to You by Us on request; and
9.10. You will install and configure Our WordPress plugin, unless You have engaged Us to perform once-off professional services under a separate arrangement in which case the following applies:
9.10.1. You will provide to Us a temporary account to access the pre-production instance of Your WordPress environment; and
9.10.2. The temporary account will be newly created by You for Us; and
9.10.3. You will not share the credentials for this account with any other organisation or individual; and
9.10.4. Credentials for the temporary account will provide authorisation for the purpose of delivering the professional services only (‘ Purpose of Access’); and
9.10.5. You will remove Our access to the temporary account once the Purpose of Access has been fulfilled.
9.11. You will develop the pages on Your website where outputs from Our WordPress plugin will be displayed; and
9.12. You will manage all third-party plugins in the WordPress hosting environment, and will remove such plugins where they create conflicts (perceived or actual as assessed by Us) with the aXcelerate WordPress Plugin; and
9.13. You will manage Your WordPress website. Such management will include (but not be limited to) providing maintenance and support, managing backups, and management of information security. - Reasonable Use
Respect for User Community
10.1. You will use the Subscription Package in a manner that is compliant with all laws, inoffensive to others, and as instructed by Us to ensure that security and quality of service is maintained for all users:
10.1.1. Such usage constitutes 'Reasonable Use'; and
10.1.2. Such communication is provided as part of the Onboarding Service, made available in the aXcelerate Knowledge Base, and otherwise as communicated by aXcelerate to you from time-to-time.
Shared SaaS Platform Infrastructure
10.2. aXcelerate infrastructure leverages the latest technology to auto-scale resources in response to demand spikes. This design means we can maintain performance under load and control the cost of the Service by only paying for extra resources when required. However, unreasonable or excessive use by you may:
10.2.1. Negatively impact performance of the Service;
10.2.2. Negatively impact the customer experience of your users and other users of the Service; and
10.2.3. Result in additional direct cost payable by aXcelerate to infrastructure providers.10.3. Examples of such unreasonable or excessive use include (but are not limited to):
10.3.1. Adding more than 100 assessments per enrolment; or
10.3.2. Adding more than 100 question items per assessment; or
10.3.3. Repeated generation of excessively large and unfiltered queries; or
10.3.4. Overly frequent event and/or workflow triggering (e.g. greater than once per hour); or
10.3.5. Scheduling workflows more than once per day that trigger operations on large volumes of data; or
10.3.6. Development of workflow processes, API calls, or other request types that include circular references; or
10.3.7. Overly frequent GET or PUT requests from systems that utilise the aXcelerate API; or
10.3.8 Excessive downloading of data on a recurring basis; or
10.3.9. Abuse of email marketing campaigns to the extent that they are considered spam.
Acknowledgements
10.4. You acknowledge that:
10.4.1. Absence of a system-enforced restriction does not constitute Reasonable Use; and
10.4.2. aXcelerate will endeavour to provide notice to You of any instances of unreasonable or excessive use and to advise You of what constitutes Reasonable Use in context of the issue. Following provision of such notice by aXcelerate to You, persistent disregard for these Reasonable Use provisions may result in You waiving Your rights under this agreement where permissible under law. - Your Data
Responsibility for Your Data
11.1. Except where explicitly set out otherwise in this Agreement, You acknowledge that You are solely responsible for the consequences of using, disclosing, storing, or transmitting Your Data.
11.2. We have no obligation to monitor any content uploaded to the Service.
11.3. We reserve the right to remove Your Data from the Service and/or suspend Your access to the Service for cause if We perceive that Your Data:
11.3.1. Endangers the operation of the Service(s); or1
1.3.1. Endangers other users; or
11.3.3. Is in breach of this agreement; or
11.3.4. Infringes the rights’ of another.
Third-Party Providers
11.4. If You enable third-party applications for use in conjunction with the Service, You acknowledge that:
11.4.1. This constitutes the grant of a permission by You for Us to allow the providers of those third-party applications to access Your Data as required for the interoperability of such third-party applications with the Service;
11.4.2. aXcelerate will not be responsible for any disclosure, modification, or deletion of Your Data resulting from any such access by third-party application providers.
Mutual Obligations to Provide Notice of Breach
11.5. Both Parties agree to immediately notify the other in the event of an actual or suspected data breach. - Intellectual Property
12.1. The Subscription Package and all related Intellectual Property Rights, including but not limited to the software, trademarks, copyrights, and content are protected under the laws of the governing jurisdiction.
12.2. No property of aXcelerate, whether it be intellectual property or other protected types, is permitted to be used without our express written consent.
12.3. You represent and warrant that You have obtained all necessary rights relating to Your Data.
12.4. You will retain all right, title and interest in and to Your Data.
12.5. You hereby grant to aXcelerate a non-exclusive, royalty-free right to collect, use, copy, store, transmit, modify and create derivative works of Your Data, in each case solely to the extent necessary to deliver the Services.
12.6. You will not attempt to modify, copy, adapt, reproduce, disassemble, decompile or reverse engineer any Product(s) or Service(s) provided by Us or Our partners in connection with aXcelerate. - Security
13.1. You will be granted access rights to create, amend, and revoke user accounts and associated access privileges.
13.2. You are responsible under this Agreement for the actions of Your users.
13.3. You must not attempt to gain unauthorised access to the Product(s) or Service(s).
13.4. You must not use, or misuse, the Product(s) or Service(s) in any way which may impair their delivery, or other systems used to deliver them, including but not limited to third-party services.
13.5. You must not allow the usernames and passwords used to access the Product(s) or Service(s) to be shared between your users.
13.6. You must ensure that all usernames and passwords used to access the Product(s) or Service(s) are kept secure and confidential.
13.7. You must immediately notify Us of any unauthorised use of Your account/s.
13.7.1. We will exercise due care in securing the Product(s) and Service(s).
13.7.2. We will procure an independent, specialist review of our information security practices from time-to-time. - Privacy & Confidentiality
Privacy
14.1. We maintain a Privacy Policy that sets out the Parties’ obligations in respect of personal information.
14.2. We reserve the right to update Our Privacy Policy from time-to-time.
14.3. Acceptance of this Agreement confers acceptance of Our Privacy Policy.
14.4. Our Privacy Policy is published on Our corporate website.
Confidentiality
14.5. Unless the relevant Party has the prior written consent of the other or unless required to do so by Law:
14.5.1. Each Party will preserve the confidentiality of all Confidential Information of the other obtained in connection with this Agreement.
14.5.2. 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.
14.6. These provisions shall not apply to any information which is:
14.6.1. Public knowledge other than by a breach of this clause;
14.6.2. Received from a third party who lawfully acquired it and who is under no obligation to restrict its disclosure;
14.6.3. In the possession of the receiving party without restriction in relation to disclosure before the date of receipt from the disclosing party; or
14.6.4. Independently developed without access to the Confidential Information. - Publicity Rights
15.1. We may only identify You as an aXcelerate client in our promotional materials where You have provided Your prior written agreement. - Conflict of Interest
16.1. The Parties acknowledge that neither has a conflict of interest (actual, potential or perceived) that would prejudice this Agreement. - Indemnity
Your Indemnification of Us
17.1. You will indemnify aXcelerate against any loss, cost, liability or damage, including legal fees arising from an impact of:
17.1.1. Changes to the Product(s) and Service(s);
17.1.2. Third-Party products or services;
17.1.3. Your use of the aXcelerate Product(s) or Service(s) in breach of this Agreement, applicable laws, or intellectual property rights of a third party;
17.1.4. Our refusal to provide any person access to Your information or Data in accordance with this Agreement; or
17.1.5. Our provision of Your information or Data to any person with Your authorisation.
Our Indemnification of You
17.2. We will defend, indemnify and hold harmless You from and against any loss, cost, liability or damage, including legal fees, arising from or in connection with the Product(s) or Service(s) of this Agreement including but not limited to any claim brought by a third party, arising from or in connection with their Services or this Agreement, where the claim, loss, cost, liability or damage is caused or contributed to by the wilful or negligent act or omission or breach of contract by Us.
Mutual Obligations
17.3. These indemnification obligations are subject to the indemnified party receiving from the other:
17.3.1. Prompt written notice of the claim;
17.3.2. The exclusive right to control and direct the investigation, defence, or settlement of such claim; and
17.3.3. Cooperation by the other party as is reasonably required and at the expense of the other party. - Liability
18.1. To the extent permitted by Law, aXcelerate and Our third-party partners, will not be liable to You for any loss or damages.
18.2. If You are not satisfied with the Service, Your sole and exclusive remedy is to terminate this Agreement.
18.3. Where aXcelerate and Our third-party partners are liable:
18.3.1. You agree that the liability cap is the total price of the Licence Fees paid during the previous twelve (12) months; and
18.3.2. We reserve the right to pay the liability cap or resupply the Service(s) at our sole discretion. - Force Majeure
19.1. You will not hold Us responsible for any interruption to the Service as a consequence of a Force Majeure Event. - Dispute Resolution
20.1. The Parties agree that in the event of a question, dispute or difficulty arising from the content of this Agreement, the matter shall be dealt with as follows:
20.1.1. The Party initiating the question, dispute or difficulty will provide the other Party with a letter or email detailing the specifics of the question, dispute or difficulty (‘Dispute Notice’);
20.1.2. The matter will be initially discussed between Us and Your contact nominated in the Schedule within seven (7) business days of receipt of the Dispute Notice;
20.1.3. If the matter is not settled within seven (7) business days of the discussion referred to above it shall be referred to a commercial mediation group to try to resolve the issue;
20.1.4. Where mediation is not successful within ten (10) business days following the successful appointment of a mediator, either Party may commence proceedings in court provided that the prior steps referred to in this clause have been followed. - Compliance with Laws
21.1. Each party remains solely responsible for complying with all Laws relating to their respective organisation. - Third-Party Vendor Services
22.1 aXcelerate or third parties may, from time to time, make available to You, third-party services, including but not limited to add-ons, integrations, and plugins as well as onboarding, customisation, training, and other consulting services.
22.2. If You procure any of these third-party services, You do so under a separate agreement solely between You and the third-party. - Agreement Term
23.1. aXcelerate will provide the Subscription Package to You for the Term as set out in the Schedule. - Termination
Termination for Cause by You
24.1. During the Term You may terminate this Agreement by written notice if:
24.1.1. You are able to evidence that We are in actual material breach of this Agreement and that such breach is not capable of remedy; or
24.1.2. We become insolvent; or
24.1.3. We go into liquidation.
Termination for Convenience by You
24.1.4. You may terminate this Agreement for convenience after serving the Initial Term if You provide written notice to aXcelerate within the period stipulated in your Schedule.
Consequences of Termination by You
24.2. If You terminate the Agreement, any Fees that have already been invoiced and paid for the Service Year will be refunded to You on a pro-rata basis. Save in the case of termination for breach, if the Service Year Licence Fee has been invoiced but not paid by You by the date that you notify us of Your intention to terminate, then You will be liable to pay a minimum of one (1) month of pro-rata Licence Fees.
Consequences of Breach by You
24.3. If You breach this Agreement (including, without limitation, by non-payment of any Licence Fees) and do not remedy the breach within 14 days after receiving notice of the breach if the breach is capable of being remedied;
24.4. If You breach this Agreement and the breach is not capable of being remedied (which includes (without limitation) any breach of payment clauses; or
24.5. If You or Your business become insolvent or Your business goes into liquidation or has a receiver or manager appointed of any of its assets or if You become insolvent, or make any arrangement with Your creditors, or become subject to any similar insolvency event in any jurisdiction.
24.6. aXcelerate may take any or all of the following actions, at its sole discretion:
24.6.1. Terminate this Agreement and Your use of the Product(s) and Service(s);
24.6.2. Suspend for any definite or indefinite period of time, Your use of the Product(s) and Service(s);
24.6.3. Suspend or terminate access to all or any Data;
24.7. For the avoidance of doubt, if payment of any invoice for Licence Fees due in relation to any of Your aXcelerate accounts is not made in full by the relevant due date, aXcelerate may suspend or terminate Your use of the Service, the authority for all or any of Your Invited Users to use the Service, or Your rights of access to all or any Data.
Rights' Accrued
24.8. Termination is without prejudice to any rights and obligations of the Parties accrued up to and including the date of termination.
Impact of Termination
24.9. On termination of this Agreement You will:
24.9.1. Remain liable for any accrued charges and amounts which become due for payment before or after termination; and
24.9.2. Immediately cease to use the Product(s) and Service(s). - Survival after Termination
25.1. The following provisions continue to apply after termination of this agreement together with any other Term which by its nature is intended to do:
25.1.1. Intellectual Property;
25.1.2. Privacy & Confidentiality;
25.1.3. Indemnity;
25.1.4. Liability;
25.1.5. Transition-Out; and
25.1.6. Liability for any accrued charges and amounts owing to Us. - Notices
26.1. A notice, consent, request or any other communication in regard to or under this Agreement or its termination must be in writing, signed by or on behalf of the Party giving it, and will be delivered either by hand or forwarded by prepaid registered post or transmitted by email, to the respective contact person of either Party as provided in the Schedule. - Costs
27.1.Each Party shall pay and bear its own costs of and incidental to the preparation, negotiation and execution of this Agreement. - Entire Agreement
28.1. This Agreement constitutes the entire Agreement of the parties about its subject matter and supersedes all previous Agreements, understandings and negotiations on that subject matter, whether orally or in writing. - Governing Law and Jurisdiction
29.1. This Agreement is governed by and construed in accordance with the laws of Queensland. The parties irrevocably submit to the non-exclusive jurisdiction of the court. - Amendments
30.1. This Agreement, or any part thereof, may be modified by us at our sole discretion.
30.2. We will publish amended terms and conditions on our corporate website.
30.3. Amended terms and conditions will be effective immediately upon publication. - Changes to Services
31.1. aXcelerate provides subscription-based Software-as-a-Service (‘SaaS’) solutions:
31.1.1. New code is deployed regularly to improve the solution in response to customer feedback, evolving market needs, and regulatory and compliance obligations.
31.1.2. Such deployments will change the existing codebase through addition, modification, and/or removal of code.
31.1.3. aXcelerate will determine the changes included in a deployment at our sole discretion.
31.1.4. The changes deployed by aXcelerate will be communicated through Release Notes. From time-to-time, communications may be released via additional channels that will be determined by us based on the nature of the changes.
31.1.5. Depending on how You have configured the solution, such changes may from time-to-time require that you amend how you use the solution. - Deprecation of Legacy Services
32.1. From time-to-time, aXcelerate will deprecate a legacy solution that has reached end of life.
Ongoing Services
32.2. Where such deprecation is for SaaS solutions that You are subscribed to aXcelerate will offer You an alternative solution:
32.2.1. If You accept the alternative solution you will be transitioned to that solution by aXcelerate. Such transition will not automatically result in the creation of a new Agreement Term, unless otherwise agreed by the Parties.
32.2.2. If You reject the alternative solution You will remain subscribed to the legacy solution until the end of the Current Term.
Once-Off Services
32.3. Where such deprecation is for once-off services:
32.3.1. aXcelerate will meet delivery obligations under existing arrangements.
32.3.2. aXcelerate will cease to offer such services. - Changes to Subscription Package
33.1. You may request changes to the ongoing Product(s) or Service(s) included in your Subscription Package.
33.2. Services can be selected from aXcelerate’s catalogue of Services to add or remove from your Subscription Package. - Transition-Out
34.1. Upon termination, We will provide you with a complete copy of Your Data via an appropriate data medium (such as a link to a secure, shared file system or USB drive sent by registered mail to your nominated physical/street address).
34.2. We may remove or delete Your Data within a reasonable period of time after the termination of this Agreement, or at a time agreed upon by You and Us.
TERMS LAST UPDATED: 01/10/2023
Standard Product: Additional Terms
- Product Inclusions
1.1. The following features are included in the Standard Product:
1.1.1. Unlimited system users/roles;
1.1.2. Custom role-based permission settings;
1.1.3. RTO compliance;
1.1.4. Scheduling and timetabling;
1.1.5. Calendar management;
1.1.6. Course and learner management;
1.1.7. Attendance tracking;
1.1.8. Certificate template management;
1.1.9. Customer relationship management (CRM);
1.1.10. Quality management (task / goal register);
1.1.11. Finance management essentials;
1.1.12. Funding reconciliation management (manual-only);
1.1.13. Trainer management;
1.1.14. Template management;
1.1.15. Document & file management (inc. resource library);
1.1.16. Surveys (including AQF surveys);
1.1.17. Custom report builder;
1.1.18. LTI resources; and
1.1.19. Account statistics.
Integrations
1.2. The following integrations are included in the Standard Product:
1.2.1. Outlook Calendar;
1.2.2. Google Calendar;
1.2.3. NCVER AVS (AVETMISS reporting);
1.2.4. Training.gov.au (TGA);
1.2.5. USI;
1.2.6. Ezypay;
1.2.7. Stripe; and
1.2.8. Eway.
Apps
1.3. The following apps are included in the Standard Product:
1.3.1. Trainer app ('Lite' version); and
1.3.2. Learner app ('Lite' version).
User Portals
1.4. The following portals are included in the Standard Product:
1.4.1. Admin portal;
1.4.2. Trainer portal; and
1.4.3. Learner portal. - Optional Upgrades
2.1. Up to three (3) of the following optional upgrades can be purchased by You:
2.1.1. Cloud Assess integration;
2.1.2. Canvas integration;
2.1.3. Moodle integration;
2.1.4. HubSpot integration;
2.1.5. Workflow automation;
2.1.6. CRICOS features;
2.1.7. VET Student Loans features;
2.1.8. Multi-RTO Account feature; and
2.1.9. Agreements feature (signatures).
2.2. You will need to upgrade Your Product subscription from the Standard Product to the Turbo Product if You require greater than three (3) of the inclusions set out in s2.1 (above).
2.3. The optional upgrades You have selected (if any) will be set out in the Schedule. - Service Inclusions & Service Levels
3.1. The service inclusions and service levels applicable to the Product are those set out in the Additional Terms relating to the Service that You have selected in the Schedule, that is either:
3.1.1. The Gold Service Package; or
3.1.2. The Platinum Service Package. - Relationship to Other Products
4.1. You are only able to subscribe to the Standard Product or the Turbo Product.
4.2. You may also subscribe to the Work-Based Learning Product.
TERMS LAST UPDATED: 01/10/2023
Turbo Product: Additional Terms
- Product Inclusions
1.1. The following features are included in the Turbo Product:
1.1.1. Unlimited system users/roles;
1.1.2. Custom role-based permission settings;
1.1.3. RTO compliance (including functionality to manage funding, state compliance, and LE/ES surveys);
1.1.4. Scheduling and timetabling;
1.1.5. Calendar management;
1.1.6. Course and learner management;
1.1.7. Attendance tracking;
1.1.8. Certificate template management;
1.1.9. Customer relationship management (CRM);
1.1.10. Quality management (task / goal register);
1.1.11. Finance management (invoicing, payments management etc.);
1.1.12. Funding reconciliation management (manual and automated);
1.1.13. Trainer management;
1.1.14. Template management;
1.1.15. Document & file management (inc. resource library);
1.1.16. Surveys (including AQF surveys);
1.1.17. Custom report builder;
1.1.18. Account statistics.
1.1.19. LTI resources;
1.1.20. Workflow Automation;
1.1.21. VET Student Loans Reports;
1.1.22. Multi-RTO Account (additional fees apply);
1.1.23. Custom System Field configurations;
1.1.24. Agreements feature (signatures);
1.1.25. Help requests;
1.1.26. Assessment & lesson authoring;
1.1.27. Learning plans;
1.1.28. Assessment mapping;
1.1.29. Observation checklist assessments;
1.1.30. Virtual classrooms; and
1.1.31. CRICOS / ELICOS enhancements.
Integrations
1.2. The following integrations are included in the Turbo Product:
1.2.1. Outlook Calendar;
1.2.2. Google Calendar;
1.2.3. NCVER AVS (AVETMISS reporting);
1.2.4. Training.gov.au (TGA);
1.2.5. USI;
1.2.6. Ezypay;
1.2.7. Stripe;
1.2.8. Eway;
1.2.9. Canvas;
1.2.10. Moodle;
1.2.11. HubSpot;
1.2.12. Xero;
1.2.13. MYOB;
1.2.14. Learning Vault Digital Credentials (additional fees apply);
1.2.15. Turnitin (additional fees apply); and
1.2.17. SCORM/xAPI Learning capability (additional fees apply).
Apps
1.3. The following apps are included in the Turbo Product:
1.3.1. Trainer app (full version); and
1.3.2. Learner app (full version).
User Portals
1.4. The following portals are included in the Standard Product:
1.4.1. Admin portal;
1.4.2. Trainer portal;
1.4.3. Learner portal;
1.4.4. Client portal;
1.4.5. Agent portal; and
1.4.6. Partner portal. - Service Inclusions & Service Levels
2.1. The service inclusions and service levels applicable to the Product are those set out in the Additional Terms relating to the Service that You have selected in the Schedule, that is either:
2.1.1. The Gold Service Package; or
2.1.2. The Platinum Service Package. - Relationship to Other Products
3.1. You are only able to subscribe to the Standard Product or the Turbo Product.
3.2. You may also subscribe to the Work-Based Learning Product.
TERMS LAST UPDATED: 01/10/2023
Work-Based Learning Product: Additional Terms
- Product Inclusions
1.1. The following features are included in the Work-Based Learning Product:
1.1.1. Native integration with aXcelerate’s SMS and LMS;
1.1.2. Supervisor app;
1.1.3. Student Placement management;
1.1.4. Learner digital logbook;
1.1.5. Learner activities (task management);
1.1.6. Placement presets templates;
1.1.7. Competency tracking/mapping integration; and
1.1.8. Mobile evidence capture. - Service Inclusions & Service Levels
2.1. The service inclusions and service levels applicable to the Product are those set out in the Additional Terms relating to the Service that You have selected in the Schedule, that is either:
2.1.1. The Gold Service Package; or
2.1.2. The Platinum Service Package.
TERMS LAST UPDATED: 01/10/2023
Gold Service: Additional Terms
- Service Inclusions
1.1. The Gold Service provides the following standard inclusions:
1.1.1. Service levels for availability, responsiveness, backup, and recovery;
1.1.2. Provisioning, maintenance, and management of multi-tenant infrastructure;
1.1.3. Provisioning, maintenance, and management of environments;
1.1.4. Access to our Developer API; and
1.1.5. Opportunities for engagement to influence our product roadmaps.
1.2. The Gold Service provides Our standard level of service for the following standard inclusions:
1.2.1. Service Availability;
1.2.2. Incident Response;
1.2.3. Service Request Response;
1.2.4. Recovery point objective (‘RPO’); and
1.2.5. Recovery time objective (‘RTO’). - Product Inclusions
2.1. The Gold Service describes the Service Inclusions and Service Levels that apply to the Product(s) You have selected for Your subscription package as set out in the Schedule, that is either:
2.1.1. The Standard Product or the Turbo Product; and
2.1.2. The Work-Based Learning Product if selected by You in Your Subscription Package; and
2.1.3. Any other product that We have made available to You and that You selected as part of Your subscription package. - Relationship to Other Services
3.1. You may subscribe to either the Gold Service or the Platinum Service. - Availability
4.1. We will ensure availability of the Service(s) in Your Production Environment is no less than 99.0%.
4.2. We will provide You with access to Our online Service Status application.
4.3. We will notify You of planned outages to perform maintenance and deploy enhancements in Your Production Environment.
4.4. We will provide You with an option to receive notification of any unplanned outages that impact Your Production Environment. - Infrastructure
5.1. We will provide You with multi-tenant infrastructure.
5.2. You acknowledge the Reasonable Use provisions in the General Terms. - Environments
6.1. We will provision, maintain, and manage a Production Environment for You.
6.2. We will provision, maintain, and manage a Staging Environment for You.
6.3. We may migrate your environments to new infrastructure within Australia at our sole discretion to ensure continuity and quality of service. - Backup & Recovery
7.1. We will perform a full database snapshot every 24 hours.
7.2. We will perform a transaction log backup every 10 minutes.
7.3. We will set a recovery point objective of 30 minutes.
7.4. We will set a recovery time objective of 8 Business Hours AEST. - Developer API
8.1. We will provide You with access to Our Developer API.
8.2. You acknowledge that the Service does not include custom development by Us or support by Us for custom development by You. Professional Services can be purchased from Us by You if required and agreed between the Parties. - Product Roadmaps
9.1. Our Products are constantly evolving in response to client and market needs. We will provide You with an opportunity to provide input to Our roadmaps through forums and channels that include (but are not limited to):
9.1.1. Invitations to Webinars; and
9.1.2. Access to Our Ideas Forum.
9.2. We reserve the right to change the inclusions and/or timelines on Our roadmaps at Our sole discretion. - Incident Response
Incident Logging
10.1. An Incident is an interruption to the availability, performance, or quality of the Service(s).
10.2. We have systems and processes to proactively identify and log Incidents.
10.3. An incident may be logged by any of Your Users that is assigned the role in aXcelerate of Systems Administrator (‘Authorised Contact’).
10.4. To log an Incident, an Authorised Contact from Your organisation must contact Our Customer Success team through the Designated Channels and describe the nature and impact of the interruption (‘Logged’).
10.5. We are obligated to respond to You where you have Logged an Incident.
Response Time Service Levels by Incident Priority
10.6. We will respond to a Priority 1 Incident Logged by You within 2 Business Hours AEST. A Priority 1 Incident means that the Service is completely unavailable at a time where no outage has been planned.
10.7. We will respond to a Priority 2 Incident Logged by You within 8 Business Hours AEST. A Priority 2 Incident means that the Service is partially unavailable at a time where no outage has been planned, or exhibiting a performance issue to deliver a transaction that would constitute Reasonable Use.
10.8. We will respond to a Priority 3 Incident Logged by You within 16 Business Hours AEST. A Priority 3 Incident means that the Service is exhibiting a functional defect.
10.9. We will respond to a Priority 4 Incident Logged by You within 32 Business Hours AEST. A Priority 4 Incident means that the Service is exhibiting a cosmetic defect that does not impact Your capability to deliver the required business outcome.
Reasonable Limitations
10.10. You acknowledge that:
10.10.1. You may select an Incident Priority level at the time of Logging. We Reserve the right to amend the Priority set where the nature and impact of the problem more closely aligns to the definitions above.
10.10.2. We offer ‘best effort’ only response times where You have not contacted Our Customer Success team via the designated channels.
10.10.3. We do not offer Incident resolution Service Levels due to Our dependency on third-party platforms and services. We have exercised due diligence and discretion in procurement and ongoing management of such platforms and services, but can not warrant the performance of third-party providers in good faith. Note that we do set internal Operating Level Agreements (OLAs) that target resolution times for Incidents.
10.10.4. We do not support third-party interfaces or integrations. We offer ‘best effort’ only response times where You have contacted Our Customer Success team via the designated channels to log an Incident in relation to third-party interfaces or integrations.
10.10.5. We do not support any technologies in your operating environment that are not in-scope of the Service(s) and which are not directly configured, owned and/or managed directly by Us. We offer ‘best effort’ only response times where You have contacted Our Customer Success team via the designated channels to log an Incident in relation to third-party interfaces or integrations. - Service Request Response
Definition
11.1. A Service Request is the lodgement by You of a request to Our Customer Success team via the designated channels (‘Lodgement’) for:
11.1.1. Access to information;
11.1.2. Seeking clarification on best practice use of the Service(s) as intended by Us. Such clarifications are not to exceed 15 minutes per occurrence;
11.1.3. Requesting changes to or raising clarifications in relation to Your Subscription Package;
11.1.4. Invoking Your rights or performing Your obligations as set out in this Agreement;
11.1.5. Notifying Us of any changes to Your business that may impact this Agreement.
11.2. We are obligated to respond to You where you have Lodged a Service Request.
Response Time Service Levels by Service Request Priority
11.3. We will respond to a Priority 1 Service Request that is Lodged by You within 2 Business Days. A Priority 1 Service Request means that the urgency is critical and the impact extends to Your entire organisation. An urgency of ‘critical’ means that You will no longer be able to perform primary work functions.
11.4. We will respond to a Priority 2 Service Request that is Lodged by You within 4 Business Days. A Priority 2 Service Request means that the urgency is high and the impact extends to all or most of Your organisation. An urgency of ‘high’ means that primary work functions may be impaired.
11.5. We will respond to a Priority 3 Service Request that is Lodged by You within 6 Business Days. A Priority 3 Service Request means that the urgency is medium and the impact extends to multiple Users. An urgency of ‘medium’ means that a workaround has been applied to enable delivery of a primary work function.
11.6. We will respond to a Priority 4 Service Request that is Lodged by You within 8 Business Days. A Priority 4 Service Request means that the urgency is low and the impact extends to one or more Users. An urgency of ‘low’ means that a matter causes you some inconvenience only.
Reasonable Limitations
11.7. You acknowledge that the following is not a Service Request:
11.7.1. Training in the use of aXcelerate. This can be obtained through Implementation Services and Professional Services.
11.7.2. Configuration of the Service(s). You are trained in how to configure the Service(s) when You receive the mandatory Implementation Services. You can request Professional Services for additional training and/or configuration of the Service(s).
11.7.3. Configuration of interfaces and/or integrations.
11.7.4. Provision of industry-related advice.
11.8. We offer ‘best effort’ only response times where You have not contacted Our Customer Success team via the designated channels.
11.9. We may at Our sole discretion elect to respond to and/or fulfil requests from You that are out-of-scope of the Service(s) and which do not constitute a Service Request under this Agreement. Where we elect to take such action, We offer ‘best effort’ only response times and may elect to refuse similar requests at Our sole discretion. - Designated Channels
12.1. You agree to use only the Designated Channels to contact Us.
12.2. The Designated Channels are set out on Our corporate website.
12.3. You acknowledge that:
12.3.1. We use systems and processes to manage the Designated Channels;
12.3.2. Failure by You to use only the Designated Channels or follow the direction provided by Our staff may result in Your associated request(s) not being fulfilled due to non-compliance with Our systems and processes; and
12.3.3. Such failure by You will not constitute a breach of this Agreement by Us.
TERMS LAST UPDATED: 01/10/2023
Platinum Service: Additional Terms
- Service Inclusions
1.1. The Platinum Service provides the following standard inclusions:
1.1.1. Service levels for availability, responsiveness, backup, and recovery;
1.1.2. Provisioning, maintenance, and management of multi-tenant infrastructure;
1.1.3. Provisioning, maintenance, and management of environments;
1.1.4. Access to our Developer API; and
1.1.5. Opportunities for engagement to influence our product roadmaps.
1.2. The Platinum Service provides Our highest level of service for the following standard inclusions:
1.2.1. Service Availability;
1.2.2. Incident Response;
1.2.3. Service Request Response;
1.2.4. Recovery point objective (‘RPO’); and
1.2.5. Recovery time objective (‘RTO’).
1.3. The Platinum Service provides the following additional service inclusions:
1.3.1. Allocation of a Service Delivery Manager (‘SDM’). - Product Inclusions
2.1. The Platinum Service describes the Service Inclusions and Service Levels that apply to the Product(s) You have selected for Your subscription package as set out in the Schedule, that is either:
2.1.1. The Standard Product or the Turbo Product; and
2.1.2. The Work-Based Learning Product if selected by You in Your Subscription Package; and
2.1.3. Any other product that We have made available to You and that You selected as part of Your subscription package. - Relationship to Other Services
3.1. You may subscribe to either the Gold Service or the Platinum Service. - Availability
4.1. We will ensure availability of the Service(s) in Your Production Environment is no less than 99.9%.
4.2. We will provide You with access to Our online Service Status application.
4.3. We will notify You of planned outages to perform maintenance and deploy enhancements in Your Production Environment.
4.4. We will provide You with an option to receive notification of any unplanned outages that impact Your Production Environment. - Infrastructure
5.1. We will provide You with multi-tenant infrastructure.
5.2. You acknowledge the Reasonable Use provisions in the General Terms. - Environments
6.1. We will provision, maintain, and manage a Production Environment for You.
6.2. We will provision, maintain, and manage a Staging Environment for You.
6.3. We may migrate your environments to new infrastructure within Australia at our sole discretion to ensure continuity and quality of service. - Backup & Recovery
7.1. We will perform a full database snapshot every 12 hours.
7.2. We will perform a transaction log backup every 5 minutes.
7.3. We will set a recovery point objective of 15 minutes.
7.4. We will set a recovery time objective of 4 Business Hours AEST. - Developer API
8.1. We will provide You with access to Our Developer API.
8.2. You acknowledge that the Service does not include custom development by Us or support by Us for custom development by You. Professional Services can be purchased from Us by You if required and agreed between the Parties. - Product Roadmaps
9.1. Our Products are constantly evolving in response to client and market needs. We will provide You with an opportunity to provide input to Our roadmaps through forums and channels that include (but are not limited to):
9.1.1. Invitations to Webinars; and
9.1.2. Access to Our Ideas Forum.
9.2. We reserve the right to change the inclusions and/or timelines on Our roadmaps at Our sole discretion. - Incident Response
Incident Logging
10.1. An Incident is an interruption to the availability, performance, or quality of the Service(s).
10.2. We have systems and processes to proactively identify and log Incidents.
10.3. An incident may be logged by any of Your Users that is assigned the role in aXcelerate of Systems Administrator (‘Authorised Contact’).
10.4. To log an Incident, an Authorised Contact from Your organisation must contact Our Customer Success team through the Designated Channels and describe the nature and impact of the interruption (‘Logged’).
10.5. We are obligated to respond to You where you have Logged an Incident.
Response Time Service Levels by Incident Priority
10.6. We will respond to a Priority 1 Incident Logged by You within 1 Business Hour AEST. A Priority 1 Incident means that the Service is completely unavailable at a time where no outage has been planned.
10.7. We will respond to a Priority 2 Incident Logged by You within 4 Business Hours AEST. A Priority 2 Incident means that the Service is partially unavailable at a time where no outage has been planned, or exhibiting a performance issue to deliver a transaction that would constitute Reasonable Use.
10.8. We will respond to a Priority 3 Incident Logged by You within 8 Business Hours AEST. A Priority 3 Incident means that the Service is exhibiting a functional defect.
10.9. We will respond to a Priority 4 Incident Logged by You within 16 Business Hours AEST. A Priority 4 Incident means that the Service is exhibiting a cosmetic defect that does not impact Your capability to deliver the required business outcome.
Reasonable Limitations
10.10. You acknowledge that:
10.10.1. You may select an Incident Priority level at the time of Logging. We Reserve the right to amend the Priority set where the nature and impact of the problem more closely aligns to the definitions above.
10.10.2. We offer ‘best effort’ only response times where You have not contacted Our Customer Success team via the designated channels.
10.10.3. We do not offer Incident resolution Service Levels due to Our dependency on third-party platforms and services. We have exercised due diligence and discretion in procurement and ongoing management of such platforms and services, but can not warrant the performance of third-party providers in good faith. Note that we do set internal Operating Level Agreements (OLAs) that target resolution times for Incidents.
10.10.4. We do not support third-party interfaces or integrations. We offer ‘best effort’ only response times where You have contacted Our Customer Success team via the designated channels to log an Incident in relation to third-party interfaces or integrations.
10.10.5. We do not support any technologies in your operating environment that are not in-scope of the Service(s) and which are not directly configured, owned and/or managed directly by Us. We offer ‘best effort’ only response times where You have contacted Our Customer Success team via the designated channels to log an Incident in relation to third-party interfaces or integrations. - Service Request Response
Definition
11.1. A Service Request is the lodgement by You of a request to Our Customer Success team via the designated channels (‘Lodgement’) for:
1.1.1. Access to information;
11.1.2. Seeking clarification on best practice use of the Service(s) as intended by Us. Such clarifications are not to exceed 15 minutes per occurrence;
11.1.3. Requesting changes to or raising clarifications in relation to Your Subscription Package;
11.1.4. Invoking Your rights or performing Your obligations as set out in this Agreement;
11.1.5. Notifying Us of any changes to Your business that may impact this Agreement.
11.2. We are obligated to respond to You where you have Lodged a Service Request.
Response Time Service Levels by Service Request Priority
11.3. We will respond to a Priority 1 Service Request that is Lodged by You within 1 Business Day. A Priority 1 Service Request means that the urgency is critical and the impact extends to Your entire organisation. An urgency of ‘critical’ means that You will no longer be able to perform primary work functions.
11.4. We will respond to a Priority 2 Service Request that is Lodged by You within 2 Business Days. A Priority 2 Service Request means that the urgency is high and the impact extends to all or most of Your organisation. An urgency of ‘high’ means that primary work functions may be impaired.
11.5. We will respond to a Priority 3 Service Request that is Lodged by You within 3 Business Days. A Priority 3 Service Request means that the urgency is medium and the impact extends to multiple Users. An urgency of ‘medium’ means that a workaround has been applied to enable delivery of a primary work function.
11.6. We will respond to a Priority 4 Service Request that is Lodged by You within 4 Business Days. A Priority 4 Service Request means that the urgency is low and the impact extends to one or more Users. An urgency of ‘low’ means that a matter causes you some inconvenience only.
Resonable Limitations
11.7. You acknowledge that the following is not a Service Request:
11.7.1. Training in the use of aXcelerate. This can be obtained through Implementation Services and Professional Services.
11.7.2. Configuration of the Service(s). You are trained in how to configure the Service(s) when You receive the mandatory Implementation Services. You can request Professional Services for additional training and/or configuration of the Service(s).
11.7.3. Configuration of interfaces and/or integrations.
11.7.4. Provision of industry-related advice.
11.8. We offer ‘best effort’ only response times where You have not contacted Our Customer Success team via the designated channels.
11.9. We may at Our sole discretion elect to respond to and/or fulfil requests from You that are out-of-scope of the Service(s) and which do not constitute a Service Request under this Agreement. Where we elect to take such action, We offer ‘best effort’ only response times and may elect to refuse similar requests at Our sole discretion. - Service Delivery Management
Allocation after Go-Live
12.1. We will allocate to You a Service Delivery Manager (‘SDM’) after ‘Go-Live’, where Go-Live means:
12.1.1. The Implementation Services defined in the General Terms are complete; and
12.1.2. Students are enrolled in the Service(s); and
12.1.3. You are providing operational services to Your students through use of the Service(s).
Time Allocated
12.2. Your SDM will be allocated to You for the number of hours per quarter (‘SDM Allocated Hours’) that is set out in the Schedule.
12.3. The SDM Allocated Hours will be consumed through the following back office and customer-facing deliverables:
12.3.1. Monitoring by the SDM that We are meeting Our service delivery obligations to You;
12.3.2. Coordinating within aXcelerate the design and delivery of corrective measures where required to ensure that service delivery outcomes are met;
12.3.3. Reporting by the SDM on Our performance in delivery of Our Service Level obligations to You;
12.3.4. Reporting by the SDM on Our performance in delivery of any Professional Services commissioned by You;
12.3.5. Reporting by the SDM on Your usage of the Service(s);
12.3.6. Meeting with You to discuss the performance and usage reports;
12.3.7. Meeting with You to understand Your evolving business needs;
12.3.8. Meeting with You to provide insight into changes to Our Products and Services; and
12.3.9. Capturing and disseminating within aXcelerate the outcomes of meetings with You to ensure there is cross-team visibility of Your sentiment and needs.
Reasonable Limitations
12.4. You agree to use only the Designated Channels to Log Incidents and Lodge Service Requests. For avoidance of doubt, the allocated SDM is not Your point of contact for Incident Logging and Service Request Lodgement.
12.5. Consumption of the SDM Allocated Hours will be reported:
12.5.1. On an exception basis only; and
12.5.2. In the event that the allocation is at risk of being exceeded or is actually over-utilised.
12.6. In the event that the SDM Allocated Hours are at risk of being over-utilised due to additional work being requested by You other than the routine monitoring, reporting, and meeting duties set out above:
12.6.1. We will notify You of the matter; and
12.6.2. The Parties will act reasonably to reach agreement on whether to defer such additional work until the subsequent Term or to purchase additional hours within the current Term as Professional Services.
12.7. You acknowledge that SDM Allocated Hours apply to each Term and any under-utilisation will not be refunded or carried-over to the subsequent Term.
Changes to Your SDM
12.8. We reserve the right to change Your allocated SDM where required to ensure continuity and quality of service delivery.
12.9. Changes to Your allocated SDM may be temporary or permanent in nature.
12.10. We will notify You of any permanent changes to Your allocated SDM.
12.11. Any change to Your allocated SDM will be subject to the outgoing SDM providing handover to the incoming SDM. - Service Assurance
13.1. At Your request We will provide to You once per Calendar Year evidence that We have maintained Our ISO 9001 certification.
13.2. At Your request We will provide to You once per Calendar Year evidence that We have maintained Our ISO 27001 certification.
13.3. At Your request We will provide to You once per Calendar Year evidence that We have procured independent security testing services.
13.4. At Your request We will provide to You once per Calendar Year evidence that We have planned and executed disaster recovery testing.
13.5. You acknowledge that We cannot provide to You extracts of Third-Party Reports until they are released by the associated Third-Party to Us. - Designated Channels
14.1. You agree to use only the Designated Channels to contact Us.
14.2. The Designated Channels are set out on Our corporate website.
14.3. You acknowledge that:
14.3.1. We use systems and processes to manage the Designated Channels;
14.3.2. Failure by You to use only the Designated Channels or follow the direction provided by Our staff may result in Your associated request(s) not being fulfilled due to non-compliance with Our systems and processes; and
14.3.3. Such failure by You will not constitute a breach of this Agreement by Us.
