Master Services Agreement

Guroo Producer Pty Ltd trading as Guroo Learning, ABN 74 613 775 616 (the Company) provides the Guroo Academy upskilling and learning platform, learning experiences, learning design and content creation, other education technology consultancy services; and the Guroo Pro authoring platform. Together with any Schedules referred to in this document, this Master Services Agreement governs any or all of services provided by the Company to the Client.

1. DEFINITIONS

The following definitions apply in this document:

a. Guroo Academy means the Company’s upskilling learning platform accessible via a client specific sub-domain created for each client.
b. Guroo Grow means the provision of platform features and services to support the sale of a client’s courses and educational solutions to individuals and businesses.
c. Guroo Success means the provision of managed services to support course participants, learning delivery, and program and course management.
d. Guroo Studio means the provision of Learning Design services to support the scoping, design, and production courses and assets.
e. Guroo Pro means the Company’s product used to outline and author digital learning content that can be distributed on learning management systems and similar platforms. The product includes Analytics functionality to enable analysis and control of digital learning content including obtaining in-depth data and insights to track and measure user outcomes, as well as streaming learning content from Guroo Pro to other learning management systems and similar platforms.
f. ABN means Australian Business Number.
g. Agreement means this Master Services Agreement.
h. Business Day means a day (other than a Saturday, Sunday or public holiday) on which banks are open for general banking business in Sydney, Australia.
i. Change Request means a written notice from the Client requesting a change to the Deliverables subject to the Scope, or any additional work not specified in a Scope or otherwise previously agreed to be provided by the Company.
j. Client means the client as identified on any Scope, or any “Parties” section to this Agreement.
k. Client IP means all Intellectual Property of the Client contained in any information provided to the Company in the course of providing the Work.
l. Commencement Date means the earlier of:
i. The date stated as the Commencement Date in a Scope, which in default shall be the date the Scope is accepted by the Client; or
ii. The date when the Company first provides Services for the Client.
m. Company means Guroo Producer Pty Ltd ABN 74 613 775 616.
n. Company IP means all Intellectual Property of the Company incorporated in the Work and includes (without limitation) Proprietary Technology.
o. Confidential Information has the meaning set out in clause 15.
p. Deliverable means any deliverable supplied by the Company subject to a Scope.
q. Expenses has the meaning set out in clause 13.1(d).
r. Fee means a fee charged by the Company for the provision of any Service.
s. Fixed Fee Rate means any set Fee that applies to a particular set of Work.
t. GST has the same meaning as in A New Tax System (Goods and Services Tax) Act 1999 (Cth).
u. Intellectual Property means any intellectual property and proprietary rights, whether registrable or not, including all copyright, patents, inventions, source code, trade secrets, know-how, product formulations, designs, databases, registered or unregistered trademarks, brand names, business names, domain names, Confidential Information and the right to have information kept confidential and other forms of intellectual property of a party in any part of the world, and including applications for the registration of any such rights and any improvements, enhancements or modifications to such rights.
v. Intellectual Property Rights means, for the duration of the rights in any part of the world, any industrial or intellectual property rights, whether registrable or not, including in respect of Intellectual Property, applications for the registration of any Intellectual Property and any improvements, enhancements or modifications to any Intellectual Property registrations.
w. Learning Experience means an online or blended learning lesson consisting of video, audio, images, multimedia, interactive media or text content, documents, questionnaires, assessments, free-text answers, company content, and other online User Content
x. Learning Experience Engine means the Company’s learning experiences content management software system comprising of a set of internet enabled files and templates providing the menu, navigation, learning interaction and tracking functionality to drive and manage Learning Experiences.
y. New IP means any Intellectual Property generated by the Company for the Client in the process of providing the Work but excludes any updates or further development of the Proprietary Technology.
z. Privacy Act means the Privacy Act 1988 (Cth) (as amended).
aa. Privacy Policy means the Company’s privacy policy as updated from time-to-time, which can be found at http://www.guroolearning.com/privacy-policy.
ab. Product means Guroo Academy, Guroo Pro and/or any technology platform or feature developed and provided by the company.
ac. Proprietary Technology means the Intellectual Property Rights the Company holds in the underlying code, or other software product that the Company may make available to the Client as part of the Services, that forms part of the Company IP, and includes any updates or further development made during the provision of Work and includes the Learning Experience Engine but excludes Guroo.Pro.
ad. Scope means any scope, project specification, SOW, proposal or quote prepared by the Company, and accepted by the Client in writing.
ae. Services means the services provided by the Company subject to this Agreement.
af. SOW means a statement of work, scope, project specification, proposal or quote prepared by the Company and accepted by Client in writing which incorporates these terms and conditions or such other services agreement agreed to between the Company and Client.
ag. Special Conditions means any particular arrangements made between the parties that are governed by this Agreement and/or change any term or condition of this Agreement.
ah. Tax Invoice has the same meaning as in A New Tax System (Goods and Services Tax) Act 1999 (Cth).
ai. Terms of Service means the terms and conditions of using Guroo Academy and/or Guroo.Pro as updated from time to time, which can be found at https://guroolearning.com/terms.
aj. Third-Party IP means any rights which are owned by a third-party that are attached to any materials included in the Work, which may be attached to (without limitation) code, web-design templates, photographs; written works; visual and artistic design; video and film; and audio recordings.
ak. TPS means a third-party service, commonly a browser such as Google or Safari.
al. User means an individual authorized by Client to access a Product.
am. User Content means images, information, documents or other data that is created, uploaded or input into Guroo.Pro by a User.
an. Website means http://www.guroolearning.com.
ao. Work means the Services and Deliverables subject to a Scope.

2. AGREEMENT AND COMMENCEMENT

The relationship between the parties shall be governed by the terms of this Agreement until terminated under the provisions of this Agreement.
This Agreement commences on the Commencement Date. Where the Commencement Date pre-dates the Agreement Date the Parties expressly acknowledge that the terms and conditions of this Agreement, to the extent reasonably possible, commenced on the Commencement Date, and this Agreement is the formalisation of an existing undocumented agreement between the Parties.
In order to accept the terms of a Scope the Client must accept the terms of this Agreement. If the Client does not accept the terms of this Agreement, it must not accept a Scope.

3. SERVICES

The Company may provide the following services (Services) to the Client:
a. Guroo Academy Learning Platform;
b. Learning experience content creation using Guroo Pro;
c. Licensing of software, including Guroo Pro, Learning Experience Engine and any other Proprietary Technology;
d. Managed services to support course participants, learning delivery, and program and course management.
e. Such other services and Deliverables as described in a Scope as may be agreed between the parties from time-to-time.
Any SOW, project specification, proposal or quote prepared by the Company and accepted by the Client (whether orally or in writing) sets out the scope (Scope) of the Services and Deliverables the Client has requested (Work). The Work will not extend beyond that scope unless the Company and the Client agree in writing.

4. TECHNOLOGY LICENSING

Guroo Academy. Where the Company provides the Client with a licence to use the Guroo Academy learning platform, the Client acknowledges and accepts the terms of such licence shall be subject to the Terms of Service.
Guroo Pro. Where the Company provides the Client with one or more licences to use Guroo Pro subject to a Scope, the Client acknowledges and accepts the terms of such licences shall be subject to the Terms of Service.
Proprietary Technology. Where the Company provides the Client with the Company’s Proprietary Technology as part of any Work, and that Proprietary Technology is required to be used by the Client in the products or services it offers to its customer, unless agreed otherwise in writing, the Company agrees to:
a. Grant the Client and its successors and assigns a perpetual, royalty-free, worldwide licence to use that Proprietary Technology within the products or services offered to the Client’s customers, except that:
i. The Client must not sub-licence or in any way commercialise the proprietary technology; and
ii. The Client must not reverse engineer, decompile or otherwise purport to copy the Company’s proprietary technology.

5. ACCEPTANCE TESTING

If specified in the Scope, the Client may assess the Work to determine if it was properly provided by the Company or to determine if they contain any defects.
The Client may notify any defects or problems with the Work by providing the Company with written notice giving the Company a reasonable amount of time to rectify the alleged issued (which in default shall not be less than 10 business days). The Company shall rectify any bona fide defects specified in the written notice in a prompt and professional manner.
Once the Client has accepted the Work any Fees contingent on providing that Work (i.e. a milestone) become payable. For the avoidance of doubt all Work is deemed to be accepted unless both clauses 5.1 and 5.2 apply.

6. CHANGE REQUESTS

No Change Request from the Client is valid until accepted in writing by the Company.
Unless agreed otherwise in writing, the Company’s usual rates (as specified in the Scope or otherwise provided to the Client) shall apply in respect of any Change Request undertaken by the Company.
For the avoidance of doubt, the parties may amend the Scope, or enter a new Scope by mutual agreement in response to a Change Request.

7. RELATIONSHIP

The Company warrants that it is an independent service provider to the Client and that it is not an employee or partner of the Client in any way.
The Company will not:
a. Hold itself out as an agent of the Client, except to the extent necessary to carry out the Work; or
b. Incur obligations or liabilities on behalf of the Client unless the Client provides written permission.

8. KEY OBLIGATIONS

The Company will:
a. Ensure that the Work is complete and provided in a timely manner and/or in accordance with any timeframes agreed by the parties;
b. Ensure that the Work is provided in accordance with the standards outlined in the Scope
c. Establish and maintain clear channels of communication at all times with the Client, and promptly answer any questions asked by the Client;
d. Comply with all the relevant laws and industry standards in respect of providing the Work; and
e. Act in accordance with the Client’s reasonable directions while providing the Work.

9. THE CLIENT'S KEY OBLIGATIONS

The Client will:
a. Ensure that the Company has access to all the:
i. Resources, personnel, electronic systems and premises required to provide the Work; and
ii. All facilities and materials and information reasonably requested by the Company to provide the Work;
b. Establish and maintain clear channels of communication at all times with the Company;
c. Promptly provide clear, complete and timely instructions and all necessary information and documents to enable the Company to provide the Work effectively;
d. The Client must immediately advise the Company, if the Company have misunderstood the Client or made incorrect assumptions;
e. Project timelines are set based on resource availability and agreed at the start of a project. If a Client is unable to meet any of the agreed timeframes and the overall project timelines are required to be extended, this shall be done by mutual agreement and will be dependent upon the availability of required resources.
f. Promptly provide the Company with a copy of all applicable policies, procedures, rules, regulations, standards of conduct and requirements relevant to the provision of the Services; and
g. Once a deliverable has been provided to a Client to review, the Client shall have 30 days to provide feedback and sign off the deliverable, or mutually agree a new timeline with the Company on when those deliverables will be signed off. Should the Client not provide sign off within the 30 days or agreed period, the deliverable will be considered complete, and any remaining invoicing milestones triggered.
h. Should a pre-paid deliverable not commence or materially progress due to delays from the client within 12 months of signing of the applicable SOW, the client may forfeit any pre-payment.

10. PUBLICITY

The Company will not use the Client logo and/or trademark and other information for publication purposes unless approved in writing by the Client.
The Client also consents to the Company referring to the Client (by name only) for the purposes of publicity, credentials, presentations and award entries provided that such reference is not likely to be detrimental to the reputation or standing of the Client.

11. SUBCONTRACTING

The Company may engage such third parties as are necessary to provide the Work without the Client’s approval.
The Company shall be responsible for ensuring that all third-party subcontractors comply with the Company’s obligations under this Agreement, including those of Confidentiality.

12. THIRD PARTY SERVICES

Disclaimer of Third-Party Services & Information
a. The Client acknowledges that any Work that the Company provides or contributes to as part of the Services may be dependent on third-party services, including but not limited to web hosting services.
b. To the extent that these are outside the reasonable control of the Company, the Client agrees that the Company shall not be responsible or liable in any way for:
i. Interruptions to the availability of Work due to third-party services; or
ii. Information contained on any linked third-party website.

13. FEES AND PAYMENT

The Company will charge the Client such fees as specified in the Scope (Fees) which may include:
a. A Fixed Fee Rate;
i. An upfront fee; and/or
ii. Payment terms in accordance with a specified payment schedule.
b. Where a Fixed Fee Rate applies the Client agrees:
i. To pay the upfront fee for the Company’s commitment to undertake the agreed work;
ii. Make all subsequent payments (if any) in accordance with a payment schedule in the Scope;
iii. The Fixed Rate Fee only covers work done within the Scope;
iv. The Client must provide instructions (and all required information and other documents) to the Company within the timeframe(s) specified in the Scope; and
v. The Fixed Fee Rate does not cover any work done outside of (i) to (iv) (inclusive) above.
c. If the Company obtains any goods or services for the Work from third parties outside the Scope, the Client agrees to pay these at cost (Expenses). Such Expenses may include, without limitation:
i. Film, video or animation production;
ii. Product, licensing, subscription or hosting fees; and
iii. Any other expense not included in the Fees subject to the Scope.
d. For the avoidance of doubt any services contained in Expenses shall not constitute subcontracting pursuant to item 11 of this Agreement.
e. The Company shall obtain approval from the Client prior to incurring the cost of any Expenses or any other cost not accounted for in the Scope.
f. Unless otherwise stated, fees are exclusive of GST, which is payable in addition at the prevailing rate.
Invoicing & Payment
a. The Company shall provide a Tax Invoice to the Client for any paid Work provided as specified in a quote or Statement of Work.
b. Work specified in a quote or Statement of Work that is less than $10,000.00 (excluding GST) shall be invoiced in advance upon signing of the SOW and provision of a Purchase Order number if applicable.
c. The Client agrees to pay any Tax Invoice promptly and within the stated timeframe, which in default shall be 30 Business Days from the date of the invoice. Payment shall be by electronic transfer into the Company’s nominated bank account unless otherwise agreed between the Parties.
Disputed Tax Invoice
a. Should the Client dispute any charge on a Tax Invoice, the Client must notify the Company of the disputed item within 5 business days of the date of the Tax Invoice.
b. The Client must pay the amount of the Tax Invoice not in dispute within the stated timeframe.
c. Failure by the Client to notify the Company of a disputed Tax Invoice within 10 business days shall be deemed acceptance by the Client of the entire Tax Invoice.
Interest
The Company may charge interest at a rate of 3% per annum on overdue Tax Invoices.
Late Payment
a. If the Client does not pay the full Fees as required, the Company may suspend all Work.
b. If Fees are not brought out of arrears within 28 days of becoming overdue, the Company may cease providing the Work without notice and end this Agreement.
c. The Client agrees that the Company shall not be responsible or liable in any way for:
i. Interruptions to the availability of Work in the event of (a)
ii. Loss of Client IP in the event of (b).

14. INTELLECTUAL PROPERTY

The Company IP
a. For the purposes of this clause the Company IP means all Intellectual Property of the Company incorporated in the Work and includes (without limitation) Proprietary Technology.
b. The Client acknowledges that the Company retains ownership of all of the Company IP.
c. Notwithstanding the separate licence for use of Proprietary Technology in clause 4, the Company grants the Client a non–exclusive, perpetual, non–transferable, royalty free and worldwide licence to use the Company IP, for the purposes of its day-to-day business, to the extent that the Company IP is contained within the Work.
Client IP
a. For the purposes of this clause Client IP means all Intellectual Property of the Client contained in any information provided to the Company in the course of providing the Work.
b. The Company acknowledges that the Client retains ownership of all of Client IP.
c. The Client grants the Company a limited licence to use the Client IP solely for the purpose of undertaking the Work for the Client.
New IP
a. For the purposes of this clause New IP means any Intellectual Property generated by the Company exclusively for the Client in the process of providing the Work but excludes any updates or further development of the Proprietary Technology.
b. New IP is owned absolutely by the Client and vests in the Client immediately
c. To the extent that the Company may at any time acquire any right, title or interest in the New IP, the Company, by this document, agrees to assign to the Client all such rights, title and interest in the New IP.

15. CONFIDENTIALITY

Confidential Information means any written or verbal information that:
a. Is about each party’s business or affairs;
b. Is about the conduct of each party under this Agreement and the during the term of this Agreement;
c. A party informs the other party that it considers it confidential and/or proprietary;
d. A party would reasonably consider to be confidential in the circumstances; and
e. Is personal information within the meaning of the Privacy Act; but
f. Does not include information that a party can establish:
i. Was in the public domain at the time it was given to that party;
ii. Became part of the public domain, without that party’s involvement in any way, after being given to the party;
iii. Was in party's possession when it was given to the party, without having been acquired (directly or indirectly) from the disclosing party; or
iv. Was received from another person who had the unrestricted legal right to disclose that information free from any confidentiality obligation.
A party shall not:
a. Use any of the Confidential Information except to the extent necessary to exercise its rights and perform its obligations under this Agreement; or
b. Disclose any of the Confidential Information except in accordance with clause 15.3.
Subject to clause 15.4, a Party may disclose Confidential Information that a Party is required to disclose:
a. By law or by order of any court or tribunal of competent jurisdiction; or
b. By any Government Agency, stock exchange or other regulatory body.
If a party is required to make a disclosure under clause 15.3, that party must:
a. To the extent possible, notify the other party immediately after it anticipates that it may be required to disclose any of the Confidential Information; and
b. Only disclose Confidential Information to the extent necessary to comply.
Each party must assist the other to comply with its obligations under the Privacy Act 1988 (Cth) (as amended) in relation to Confidential Information.

16. PRIVACY AND DIRECT MARKETING

The Company maintains the Privacy Policy in compliance with the provisions of the Privacy Act for data that it collects about individuals.
The Privacy Policy does not apply to how the Client handles personal information. If necessary, under the Privacy Act, it is the Client’s responsibility to meet the obligations of the Privacy Act by implementing a privacy policy in accordance with law.
The Company may collect personal information about the Client and its representatives and employees in the course of acting for the Client. This personal information will only be disclosed and used for the purposes of providing the Work, improving the Company’s services and obtaining feedback, or otherwise in accordance with the Client’s instructions and the Privacy Policy.
Where the Client provides the Company with the personal information of its customers, employees, contractors or other individuals, the Client warrants that it is duly authorised to do so.
The Client consents to the Company’s use of the Client’s contact details to maintain an ongoing professional relationship with the Client and any associated entity, including in order to provide updates, invitations and other communications the Company consider may interest the Client.
The Client may have rights under the Privacy Act 1988 (Cth) (as amended) to obtain access to personal information the Company holds. The Client may ask the Company not to send direct marketing materials by contacting the Company by email in accordance with the Privacy Policy.

17. LIABILITY AND DIRECT INDEMNITY

In no circumstances will the Company be liable for any direct, incidental, consequential or indirect damages, loss or corruption of data, loss of profits, goodwill, bargain or opportunity, loss of anticipated savings or any other similar or analogous loss resulting from the Client’s access to, or use of, or inability to use the Work, whether based on warranty, contract, tort, negligence, in equity or any other legal theory, and whether or not the Company knew or should have known of the possibility of such damage, to business interruption of any type, whether in tort, contract or otherwise.
Certain rights and remedies may be available under the Competition and Consumer Act 2010 (Cth) or similar legislation of other States or Territories and may not be permitted to be excluded, restricted or modified. Apart from those that cannot be excluded, the Company and its related entities exclude all conditions and warranties that may be implied by law. To the extent permitted by law, liability of the Company for breach of any implied warranty or condition that cannot be excluded is restricted, at the Company’s option to:
a. The re-supply of services or payment of the cost of re-supply of services; or
b. The replacement or repair of goods or payment of the cost of replacement or repair.

18. DISPUTE RESOLUTION

If any dispute arises between the Client and the Company in connection with this Agreement (Dispute), then either party may notify the other of the Dispute with a notice (Dispute Notice) which:
a. Includes or is accompanied by full and detailed particulars of the Dispute; and
b. Is delivered within 10 Business Days of the circumstances giving rise to the Dispute first occurring.
Within 10 Business Days after a Dispute Notice is given, a representative (with the authority to resolve the dispute) of the Client and the Company must meet and seek to resolve the Dispute.
Subject to clause 18.4, a party must not bring court proceedings in respect of any Dispute unless it first complies with the requirements of the dispute resolution mechanism outlined in this clause.
Nothing in this clause prevents either party from instituting court proceedings to seek urgent injunctive, interlocutory or declaratory relief in respect of a Dispute.
Despite the existence of a Dispute, the parties must continue to perform their respective obligations under this document and any related agreements.

19. TERMINATION

This Agreement shall end when the Services and/or Deliverables have been completed by the Company in the reasonable opinion of the Client, or at any time agreed by the parties in writing.
Without affecting any other rights or obligations of the parties, either party may terminate this Agreement by giving 30 days’ written notice.
Where a party is in breach of this Agreement, the other party may provide the breaching party a notice to remedy the breach within a reasonable time, which shall not be less than 10 business days. Should the breach remain unremedied then the other party may terminate this contract by written notice.
Should the Client terminate this Agreement without cause, it shall remain liable to pay any Fees that it had agreed to pay the Company for all active and/or Work delivered under a Scope, and should the Company terminate this Agreement without cause, it much reimburse the costs to the Client incurred in completing any unfinished Work under a Scope or migrating to a new learning platform.

20. MODIFICATION OF TERMS

Where the Company modifies the terms, it will provide the Client with written notice, and the Client will be required to accept the modified terms in order to continue using the Services.
If the Client does not accept the modified terms, it must notify the Company and terminate this Agreement.

21. ELECTRONIC COMMUNICATION, AMENDMENT & ASSIGNMENT

The words in this clause that are defined in the Electronic Transactions Act 1999 (Cth) have the same meaning.
The Client can direct notices, enquiries, complaints and so forth to the Company as set out in this Agreement. The Company will notify the Client of a change of details from time-to-time.
The Company will send the Client notices and other correspondence to the details that the Client submits to the Company, or that the Client notifies the Company of from time-to-time. It is the Client’s responsibility to update its contact details as they change.
A consent notice or communication under this Agreement is effective if it is sent as an electronic communication unless required to be physically delivered under law.
Notices must be sent to the parties’ most recent known contact details.
The Client may not assign or otherwise create an interest in this Agreement.
The Company may assign or otherwise create an interest in its rights under this Agreement by giving written notice to the Client.
Notices to the Company must be sent to:

Guroo Producer Pty Ltd
G04 / 38 – 52 Waterloo Street
Surry Hills, NSW 2010, Australia

joshhumphries@guroolearning.com

22. GENERAL

Special Conditions. The parties may agree to any Special Conditions to this Agreement in writing.
Prevalence. To the extent that this Agreement is inconsistent with the Terms of Service, the terms of this Agreement shall prevail. To the extent that the Scope is inconsistent with the terms of this Agreement, the terms of the Scope will prevail. To the extent that the Special Conditions are inconsistent with any other term of this Agreement, the Special Conditions will prevail.
Disclaimer. Each party acknowledges that it has not relied on any representation, warranty or statement made by any other party, other than as set out in this Agreement.
Relationship. The relationship of the parties to this Agreement does not form a joint venture or partnership.
Non-Solicitation for Employment. The parties agree that neither party and their associated entities, sub-contractors or their employees will employ or approach for employment, the employees or ex-employees of the other party, during the term and until a minimum period of six (6) months following the termination of this agreement.
Waiver. No clause of this Agreement will be deemed waived, and no breach excused unless such waiver or consent is provided in writing.
Further Assurances. Each party must do anything necessary (including executing agreements and documents) to give full effect to this Agreement and the transaction facilitated by it.
Governing Law. This Agreement is governed by the laws of the state of New South Wales, Australia. Each of the parties hereby submits to the non-exclusive jurisdiction of courts with jurisdiction there.
Severability. Any clause of this Agreement, which is invalid or unenforceable is ineffective to the extent of the invalidity or unenforceability without affecting the remaining clauses of this Agreement.
Interpretation. Headings are only for convenience and do not affect interpretation. The following rules apply unless the context requires otherwise:
a. The singular includes the plural and the opposite also applies.
b. If a word or phrase is defined, any other grammatical form of that word or phrase has a corresponding meaning.
c. A reference to a clause refers to clauses in this Agreement.
d. A reference to legislation is to that legislation as amended, re-enacted or replaced, and includes any subordinate legislation issued under it.
e. Mentioning anything after includes, including, or similar expressions, does not limit anything else that might be included.
f. A reference to a party to this Agreement or another agreement or document includes that party’s successors and permitted substitutes and assigns (and, where applicable, the party’s legal personal representatives).
g. A reference to a person, corporation, trust, partnership, unincorporated body or other entity includes any of them.
h. A reference to information is to information of any kind in any form or medium, whether formal or informal, written or unwritten, for example, computer software or programs, concepts, data, drawings, ideas, knowledge, procedures, source codes or object codes, technology or trade secrets.
i. A reference to dollars or $ is to an amount in Australian currency unless otherwise explicitly specified.

END MASTER SERVICES AGREEMENT