LMS and SMS Service Agreement
ESKILLED PTY LTD
A. The Customer is an organisation that delivers training to students enrolled in its courses.
B. eSkilled has the right to provide the Customer access and use of the SMS and LMS.
C. The Customer seeks use of the SMS and LMS to deliver training and assessment to its students.
D. eSkilled agrees to grant the Customer use of the SMS and LMS on the terms set out in this Service Agreement.
The Operative Part
1. Definitions and Interpretation
1.1 In this Agreement, unless context otherwise requires, the following words have the corresponding meanings:
a. Agreement means this Service Agreement as amended pursuant to Clause 10 and including the Recitals and Schedules to it.
b. Anniversary Date means the date that is 12 months from the Commencement Date, or such earlier date as may be agreed between the Parties and specified in Item 4 of Schedule 1.
c. ASQA means the Australian Skills Quality Authority.
d. Australian Consumer Law means Schedule 2 to the Competition and Consumer Act 2010 (Cth).
e. Business Day means a day, other than a Saturday, Sunday or gazetted public holiday in Brisbane in the State of Queensland, Australia.
f. Commencement Date means the date specified in Item 3 of Schedule 1.
g. Course means an area in the SMS and LMS with resources and activities for students to complete. A webpage that may contain downloadable documents, SCORM files, quiz questions, online assessment tasks, or other activities where the learner progresses through interaction with the learning resources and activities.
h. Customer means the entity in Item 2 of Schedule 1.
i. Data means any data belonging to the Customer or that the Customer is permitted to use, that the Customer inputs into the SMS and LMS or otherwise provides to eSkilled for the purpose of delivering the Service.
j. Data Storage Limit means the maximum amount of Data that can be stored under the terms of this Agreement, as set out in Item 7 of Schedule 1, counted as the highest recorded Data Usage on any day a calendar month. Data storage usage is rounded up to the nearest Gigabyte.
k. Enrolment means a user enrolled as a student in a course in the LMS and/or SMS.
l. eSkilled means eSkilled Pty Ltd A.C.N.
m. Excess Data Storage Fee means the sum of money in Item 9 of Schedule 1, being the sum payable per calendar month for storage of data in excess of the Data Storage Limit. The Excess Data Storage Fee is payable monthly. Unless otherwise specified, the Excess Data Storage Fee includes GST.
n. Fee means the sum of money in Item 5 of Schedule 1, being the sum payable for the Service for the Term. The Fee is payable monthly or annually, as specified in Item 5 of Schedule 1. Unless otherwise specified, the Fee includes GST.
o. Force Majeure Event means:
i. a tsunami, flood, cyclone, earthquake, bushfire or other act of nature;
ii. riot, civil commotion, war, invasion or a terrorist act;
iii. interruptions to access to the Website or SMS and LMS, due to failure of the internet or third-party software, systems, or an emergency or planned outage; or
iv. an imminent threat of an event in paragraphs i to iii.
p. Gigabyte means one gigabyte or one billion bytes of Data as reported by the SMS and LMS control panel.
q. GST means goods and Services tax under the A new Tax System (Goods and Services Tax) Act 1999 (Cth) and other related legislation.
r. Included Enrolments Per Year means the number of unique users who have an enrolment within the LMS and/or SMS within the Term, as set out in Item 6 of Schedule 1.
s. Initial Term means the period of this Agreement that starts at the commencement date
t. Intellectual Property Rights means any rights of eSkilled or other person in any trademarks, patents, logos, designs and copyright material, software and any other forms, documents, improvements, trade secrets, technical data, computer programs and data bases associated with the SMS and LMS.
u. LMS or Learning Management System means all hosted systems and application software including all upgrades and versions at the internet website at the domains eskilledrtosoftware.com.au, eskilled.com.au, rto.net.au, e-learnme.com.au or any other domain operated by eSkilled.
v. Notifiable Data Breaches Scheme means the scheme established under the Privacy Act 1988 (Cth) requiring the reporting of eligible data breaches to affected individuals and/or the Office of the Australian Information Commissioner.
w. Other Fees means the sum of money in Schedule 2, being the sum payable for any other product or Service requested by the Customer. Unless otherwise specified, Other Fees includes GST.
x. Onboarding Training means live, interactive webinars for the total duration set out in Schedule 1, which provides an overview of:
i. the key functions and features of the SMS and LMS;
ii. how to insert the Customer’s name and logo into the SMS and LMS;
iii. how to enrol Students;
iv. how to access user guides;
v. course structure set up and editing process;
vi. how to access student results and completion reports; and
vii. using templates through the SMS and LMS.
viii. Setting up and producing Certificates and Statement of Attainment
y. Renewal Term means a twelve (12) month period.
z. Resources means the learning materials, assessments and other related information and documents which form a Course.
aa. RTO means Registered Training Organisation registered by National Vocational Education and Training regulator of Australia to deliver VET Services.
bb. Service means the service provided by eSkilled to the Customer as outlined at Clause 2 of this Agreement to access and use the SMS and LMS for the purpose of delivering VET Services to Students.
cc. Setup Fee means the sum of money in Item 8 of Schedule 1, being the sum payable for initial setup of the SMS and LMS. Unless otherwise specified, the Setup Fee includes GST.
dd. SMS or Student Management System means the software, owned by eSkilled, which is a cloud-based software application for the use of education institutions/registered training organisations to manage students, agents, trainers, and administrators. The student management system provides capabilities for registering users, enrolling students in courses, documenting grading, producing certificates and statements of attainment, as well as student assessment results. It also records training timetables and schedules; tracks student attendance; generates reports and stores student and RTO data.
ee. Student means a student of the Customer, who is or is intended to be given access to the SMS and LMS for the purpose of undertaking training.
ff. Support Policy means the document titled ‘eSkilled Support Policy’ as amended from time to time and published on the Website at the following address: https://eskilledrtosoftware.com.au/support-policy/
gg. Term means a period of twelve (12) months from the Commencement Date.
hh. User means a student, trainer, assessor, administrator, contractor, agent, or any other person provided access to the SMS and LMS by the Customer.
ii. VET means Vocational Education and Training.
jj. Website means the internet site at the domains eskilledrtosoftware.com.au, eskilled.com.au, rto.net.au, e-learnme.com.au or any other domain operated by eSkilled.
1.2. Unless the context otherwise provides:
a. The singular includes the plural and vice versa and words of one gender include the other gender;
b. Where two or more persons are named as a party to this Agreement, the representations, warranties, covenants, obligations and rights given, entered into or conferred (as the case may be), bind them jointly and each of them severally;
c. A reference to any party to this Agreement or any other document or arrangement includes that party’s successors, substitutes, permitted assigns, executors and administrators;
d. A reference to any Agreement or document is to that Agreement or document (and where applicable, any of its provisions) as varied, amended, novated, supplemented, or replaced from time to time;
e. If the day on or by which a person must do something under this Agreement is not a Business Day, the person must do it on the next Business Day;
f. A reference to “dollars” or “$” in this Agreement means the currency of Australia;
g. A reference to any legislation or legislative provision includes any statutory modification or re-enactment of, or legislative provision substituted for, and any subordinate legislation issued under, that legislation or legislative provision. Any general reference to “Statute” or “Statutes” includes any regulations or orders made under the Statute or Statutes;
h. The meaning of general words is not to be limited by the meaning of accompanying specific words;
i. A reference to an individual or person includes a company, corporation, partnership, firm, joint venture, association (whether incorporated or not), body, authority, trust, state, or government and vice versa; and
j. Where an expression is defined, another part of speech or grammatical form of that expression has a corresponding meaning.
2.1. In consideration for the Fee, eSkilled grants the Customer non-exclusive rights to:
a. Access and use the SMS and LMS applications for the Term and on the terms and conditions set out in this Agreement.
3. eSkilled's Obligations, Warranties and Gurantees
3.1. eSkilled will:
a. provide the Customer with access to the SMS and LMS;
b. provide the Onboarding Training to the Customer;
c. take reasonable steps to maintain appropriate protections for any Data provided to it by the Customer; and
d. comply with the Notifiable Data Breaches Scheme, where necessary.
3.2. eSkilled warrants that the Customer’s use of the SMS and LMS to deliver VET Services to Students will not infringe the rights, including Intellectual Property Rights and/or moral rights, of any third party.
4. Customer's Obligations
4.1. The Customer must:
a. pay the Fee, Setup Fee, and any Other Fees to eSkilled;
b. comply with any policies published by eSkilled on the Website, including those relating to privacy, use of confidential information or use of the SMS and LMS;
c. upload, install of otherwise set up any Templates, Resources or Courses in the SMS and LMS.
d. protect the SMS and LMS against unauthorised access, use or damage, including by:
i. advising employees, officers, Students and any other person authorised to access the SMS and LMS not to share their password with any other person;
e. not assign the Service to any other person, or otherwise transfer, sell, charge or encumber the Service, except that the Customer may charge a fee to Students that are users of the SMS and LMS for the purpose of receiving VET Services;
f. not post or transmit any material through the SMS and LMS or related websites that:
i. is unlawful, abusive, defamatory, threatening, obscene, or breaches, limits or infringes upon a person’s privacy or other rights;
ii. encourage the commission of an offence;
iii. creates or gives rise to a civil liability;
iv. violates any law of the Commonwealth of Australia or of any State or Territory of Australia;
g. not use the SMS and LMS in a way that prevents any other person from utilising the SMS and LMS;
h. not generate unsolicited emails or advertisements or engage in religious, political or other solicitation.
i. not transmit or upload a virus, worm, trojan horse or any other malicious software or harmful code;
j. not gain or attempt to gain access to parts of the SMS and LMS that the Customer is not authorised or entitled to access;
k. not claim it is, hold itself out as, or engage in any conduct or make any representation the effect of which would suggest that it is, the agent of eSkilled;
l. ensure that the SMS and LMS is not subjected to any treatment that is prejudicial to the reputation of eSkilled;
m. if the Customer becomes aware of any legal proceedings, threat of legal proceedings or claim which may involve the SMS and LMS,
i. advise eSkilled of the proceedings, threat or claim;
ii. keep eSkilled fully informed of the progress of any such proceedings, threat or claim;
iii. provide eSkilled with copies of any and all documents, including legal advice, eSkilled requests from the Customer relating to the proceedings, threat or claim;
iv. not oppose any steps taken by eSkilled to join or respond to the proceedings, threat or claim;
v. not settle such proceeding, threat or claim without the consent of eSkilled;
5. Customer's Acknowldegements and Warranties
5.1. The Customer acknowledges that:
a. the Service is non-exclusive, which means that eSkilled may service other persons without seeking permission or consent of the Customer;
b. eSkilled will provide support in accordance with the Support Policy;
c. eSkilled will not assist the Customer with transferring or inputting any Data to the SMS and LMS, unless otherwise agreed by eSkilled in writing;
d. eSkilled will not assist the Customer with transferring or inputting any Resources or Courses to the SMS and LMS, unless otherwise agreed by eSkilled in writing;
e. any suspected fraudulent, abusive or unlawful activity may be disclosed to an appropriate authority;
f. there are inherent risks in transmitting data and dealings over the internet, and that from time to time, access to the SMS and LMS may be interrupted, including because of a Force Majeure Event; and
g. utilising the SMS and LMS involves the transmission of Data to and by eSkilled over networks not owned by eSkilled, and that eSkilled is not responsible for any data loss, alteration, interception or other failure of any sort.
h. if the Customer exceeds the Maximum Data Limit for a month, they must pay the Excess Data Storage Fee for that month.
i. if the Customer exceeds the Included Unique Student Enrolments Per Year, they must pay the Extra Per Enrolment Fee.
6. Limitation of Liability and Indemnity
6.1. To the fullest extent permitted by law, eSkilled expressly disclaims all implied warranties and conditions including without limitation implied warranties as to merchantability and fitness for purpose of the SMS and LMS.
6.2. To the fullest extent permitted by law, eSkilled excludes all liability for indirect or consequential loss including loss of revenue, loss of profits, loss of goodwill, failure to realise expected profits or savings and any other commercial or economic loss of any kind arising from providing the service.
6.3. eSkilled is not liable for use of the SMS and LMS by the Customer that is not in accordance with the Standards for Registered Training Organisations (RTOs) 2015 as amended or replaced from time to time.
6.4. eSkilled will not be responsible for any interruption to access or use of the SMS and LMS or any loss of Data as a result of a Force Majeure Event or action of a third party, including data loss caused by malicious software or viruses, or unauthorised access or use of the Data or SMS and LMS by a third party.
6.5. The Customer indemnifies, and promises to keep indemnified, eSkilled against any loss, claim, action, settlement, award, judgment, expense or damage that eSkilled might suffer as a result of or incidental to the Customer’s use (whether or not such use is authorised) of the SMS and LMS.
6.6. eSkilled is not liable for the use of any Resources or Courses in the SMS and LMS.
7. Service Agreement Renewal
7.1. The Customer agrees that on the Anniversary Date, this Service Agreement will automatically be extended by the Renewal Term, unless the Customer provides notice to eSkilled of their intention to terminate at least thirty (30) days prior to their Anniversary Date.
7.2. Once the Anniversary Date is reached, and no notice to terminate received, this Service Agreement Anniversary Date will be extended by the Renewal Term.
8. Suspension, Cancellation and Termination of the Service
8.1. eSkilled may immediately suspend the Customer’s access to the SMS and LMS or any parts thereof if eSkilled suspects or finds:
a. that the Customer or any of its Students is using the SMS and/or LMS in a way that poses a risk to the use and enjoyment of the SMS and LMS by any other person;
b. that providing access to the SMS and/or LMS to the Customer has become unlawful;
c. that the Customer or any of its Students has breached any clause of this Agreement;
d. a resolution is passed for the winding up, dissolution, official management or administration of the Customer;
e. the Customer enters into any arrangement or composition with its creditors; or
f. the Customer is deemed to be insolvent or a receiver, receiver and manager, official manager or provisional liquidator is appointed with respect to the Customer or any of its assets.
g. the Customer has reached 14 days in arrears on SMS and LMS license fees or any other fees, without a prior arrangement agreed in writing by eSkilled.
8.2. eSkilled must give notice to the Customer of the suspension, and, if the Customer does not remedy the issue giving rise to the suspension within 7 days of receiving the notice, eSkilled may terminate the Service.
8.3. eSkilled may terminate the Customer’s access to the SMS and LMS if:
a. the Customer breaches Clause 4 of this Agreement; or
b. a Warranty given by the Customer in Clause 5.2 of this Agreement is or becomes inaccurate.
8.4. The Customer may terminate the Service:
a. if eSkilled breaches Clause 3.1 of this Agreement, and the breach is not remedied within 30 days of the Customer providing notice of the breach in writing to eSkilled; or
b. at any time after the Anniversary Date, by giving 30 days prior written notice.
8.5. The Parties acknowledge and agree that no refund or credit for unused Active Users or any part of the Fee will be given if the Service is terminated prior to the Anniversary Date.
8.6. Upon termination the Customer must immediately cease using the SMS and LMS.
8.7. eSkilled will provide the Customer with a copy of the Data (in database format) within 30 days after termination. The cost of extracting the database to be paid by the Customer at the Level 2 Support Hour rates published on the Support Policy
8.8. Termination by eSkilled
a. ESkilled may terminate this Agreement at any time by giving the Customer at least thirty (30) days prior written notice. If eSkilled terminates this Agreement in this way and the Customer is not in breach of this Agreement, any charges paid by the Customer will be refunded on a pro-rata basis of the amount paid by the Customer for the time in which the Customer will not be provided with the Service.
b. Notwithstanding 8.9a, eSkilled shall use its best endeavours to provide continuing availability to the Service for the duration of this Agreement, but the Customer expressly acknowledges and accepts that eSkilled may, at its absolute discretion, immediately discontinue the Service with no notice to the Customer if eSkilled ability to provide the Service is restricted or altered in such a way that eSkilled considers, in its absolute discretion, that it is not commercially viable, impractical or impossible, to continue to provide the Service.
9. Force Majeure
9.1. A Party is not liable for a breach of this Agreement, to the extent that the breach is a consequence of a Force Majeure Event.
9.2. If a Party becomes aware that it will be unable to comply with its obligations under this Agreement because of a Force Majeure Event it must immediately notify the other Party of the existence of the Force Majeure Event, the obligations with which it will be unable to comply, and the likely period of the Force Majeure Event.
9.3. When the Party is no longer prevented from complying with its obligations under this Agreement by the Force Majeure Event, then the Party must immediately notify the other Party of that fact.
10.1. Any Notice given pursuant to this Agreement must be given in writing and addressed to the recipient email address in Item 1 or 2 of Schedule 1.
10.2 A Notice will be deemed given:
a. if by email, on receiving notification of successful transmission of the email, a read receipt or a reply email confirming receipt, whichever is first.
10.3 If the notice is deemed to be received on a day that is not a Business Day or after 5pm, it is deemed to be received at 9am on the next Business Day.
11.1. The Parties acknowledge that eSkilled may amend this Agreement from time-to-time and to the extent permitted at law. The Amendment must not vary the Fee or reduce maximum number of Active Users in the initial term.
11.2. eSkilled may amend the fee or any other agreement terms after the Anniversary Date.
11.3. eSkilled will provide the amended Agreement to the Customer at the email address specified in Item 2 of Schedule 1.
11.4. The Customer agrees to be bound by the Agreement as amended from the date notice is given in accordance with this Clause.
12. Governing Law
12.1. The Parties agree that this Agreement was made and entered into in the State of Queensland, Australia.
12.2. This Agreement will be governed by and construed in accordance with the laws of the State of Queensland, Australia.
12.3. Any claim made by one party against the other in any way arising out of this Agreement will be heard in a court in Queensland and the parties submit to the jurisdiction of those Courts.
13. Relationship Between The Parties
The Parties do not intend that this Agreement will give rise or be deemed to constitute a partnership, joint venture, or agency between the parties.
14. Entire Agreement
The terms of this Agreement constitute the entire Agreement between the parties and all understandings, prior representations, arrangements, or commitments that are not contained herein have no effect whatsoever and do not bind the parties.
15. Independent Legal Advice
The Parties agree that they have had the opportunity to obtain independent legal advice on the terms, effect and operation of this Agreement.
16. Invalidity or Severance
16.1. If any provision of this Agreement is invalid under any law then that provision will be limited, narrowed, construed or altered as necessary to render it valid, but only to the extent necessary to achieve such validity.
16.2. Any provision which cannot be construed in a way that is valid and enforceable will be severed from this Agreement and the remaining provisions will remain in full force and effect.
17.1 No Party may commence proceedings in relation to any dispute arising out of this Agreement whatsoever unless it has first complied with this Clause 16.
17.2. The aggrieved party must notify the other Party in writing of the:
a. nature of the dispute
b. outcome they are seeking; and
c. action they consider will settle the dispute.
17.3. If the dispute is not resolved within 10 Business Days, it will be referred to mediation with a mediator nominated by the President of the Queensland Law Society, unless the parties agree to appoint a particular mediator within a further 3 Business Days.
17.4. If the Dispute is unable to be resolved through formal mediation within 3 months of the date the aggrieved party notified the other of the dispute, then either party may commence court proceedings.
17.5. This Clause survives the termination of this Agreement.
18.1. No waiver of any right or remedy will be effective unless in writing and will not operate as a waiver of that right or remedy or any other right or remedy on a future occasion.
18.2. The conduct of the parties will not constitute a waiver of any right or remedy.
19. Implied Terms
Any implied term under law that can be excluded is expressly excluded and no term is to be implied as being a term or condition of sale unless by law it cannot be excluded.
20. Execution of Agreement
20.1. Each person signing this Agreement:
a. as attorney, by so doing warrants to the other parties that, as at the date of signing, the signatory has not received notice or information of the revocation of the power of attorney appointing that person; and
b. as an authorised representative, agent or trustee of a party, by so doing warrants to the other parties that, as at the date of signing, the signatory has full authority to execute this Agreement on behalf of that party.
eSkilled Pty Ltd
Company Name: Your Company
Email: Your Emails
[Date per initial subscription invoice]
[Commencement date + 1 year]
As Per Your Selected Subscription Package
$XXX per month for the Term
Included Unique Student Enrolments Year
As Per Your Selected Subscription Package
Data Storage Limit
As Per Your Selected Subscription Package
As Per Your Selected Subscription Package
Excess Data Storage Fee
$2 per Gigabyte of Data per calendar month
Extra Per Enrolment Fee
As Per Your Selected Subscription Package
$X per Enrolment (Once Included Enrolments Exceeded)