Performate Terms of Service

1. Introduction 

1.1 Performate (ABN 17 200 802 843) (“Performate Business”, “us” “we”) has developed an application known as “Performate”. Performate provides users with the ability to make an assessment of competency compared against a baseline assessment criteria, review analytics and track progress. Performate may also analyse video footage taken of a subject (”Performer”) completing a physical activity.  

1.2 These Terms of Service (“Terms”) govern access to and use of Performate, including all associated features and functionalities, by Participating Organisations and authorised representatives of Participating Organisations (such as Teachers) or individuals who  otherwise use or access, Performate (such as a parent or guardian of a Performer or a Family Member) (“you” or “your”). 

1.3 By installing, accessing, or otherwise using Performate, or by permitting a person to use Performate in respect of a Performer for whom you are responsible, you accept these Terms as a binding contract (whether on behalf of you, as a parent or guardian of a Performer or as an authorised representative of a Participating Organisation, depending upon the capacity in which you are acting).   

1.4 If you are the parent or guardian of a Performer who is a Minor, then, by using Performate or consenting to your Performer being assessed by Performate, you also accept these Terms on that Performer behalf. See also clause 3 “Consent requirements for Minors”).  

1.5 These Terms will continue to apply to, and govern your use of, Performate while you have a valid Performate subscription (in relation to Participating Organisations), and while you continue to access and use Performate (in relation to parents or guardians of a Performer or a Family Member). If you do not accept and comply with these Terms, you may not use Performate or its features. 

2. Changes to these Terms 

2.1 We may update the Terms from time to time. If we do, we will let you know by posting the updated Terms in the application to which you will have access, and/or send other communications to you accordingly.  

2.2 It is important that you review the Terms whenever we update them. If you continue to use Performate after we have posted updated Terms it means that you accept and agree to the changes. If you do not agree to be bound by the changes, you should not use Performate anymore.  

2.3 Over time, as the technology evolves, we may enhance, change or discontinue certain features or functionality of Performate. We will notify you of any such adjustments in the same way that we will notify you of any changes to these Terms.   

3. Consent requirements for Minors 

3.1 In order to provide you with access to Performate, we may collect Personal Information about Minors. The Performate Business requires Teachers or Participating Organisations to obtain prior express written consent from parents or guardians of Minors for whom Performate will be used.  

3.2 There are a number of methods Teachers or Participating Organisations can use to satisfy this requirement: 

3.3 get consent as part of an organisation-wide technology consent process you may already have in place; or use our sample parent/guardian consent form, but please note that this is an example only and does not constitute legal advice.  

3.4 If you are using Performate as a Teacher, you represent and warrant to the Performate Business on behalf of the Participating Organisation that

(i) you are employed by that Participating Organisation; and

(ii) prior to uploading any Personal Information of any Minor onto Performate, you have, or someone on your behalf has (such as your Participating Organisation), obtained the express written consent of the parent or guardian of each such Minor. In addition, you should consult with your Participating Organisation to ensure that you obtain proper consent to use Performate that is consistent with your organisation’s policies. See also clause 4 (“Creating a Teacher Account”) below. If you are aware that Performate is being used to collect Personal Information from a Minor without parental consent, please contact us immediately at hello@performate.co

3.5 A Participating Organisation Administrator can invite Performers from other Participating Organisations into classes over which they have control, provided all relevant consents have been obtained from or on behalf of the Performer. 

4. Creating a Teacher Account 

4.1 Only Participating Organisation Administrators are permitted to create an account on Performate that is linked to that Participating Organisation (“Teacher Account”).  Teachers will be assigned to a class, and this Teacher can invite Performers, other Teachers, and Family Members of Performers to view selected content for that Performer.  Teachers control who can upload, view, comment on, and share Assessment Data for a class and they can change these permissions at any time. 

4.2 When you create a Teacher Account, you represent and warrant that: 

a) any Performers you add to your Participating Organisation (and subsequently to classes) are current Performers of your Participating Organisation; 

b) any additional Teachers you add to your Participating Organisation are authorised by your Participating Organisation to access Performer Data; 

c) you will use Performate only for lawful purposes and you will abide by applicable laws (including Privacy Laws) and school policies; 

d) you will treat Performate as an extension of learning methods and take reasonable steps to confirm that Performers are using Performate appropriately; and  

e) you will take reasonable measures to protect access to Performer Data accessible through Performate.  

5. Linking an a parent, guardian or Family Member to a Performer Account 

5.1 A Participating Organisation Administrator can authorise a parent, guardian or Family Member to view information in their Performer’s (or relative’s, in the case of a Family Member) Performer Data. By using Performate, you agree that you are the parent or legal guardian of the Performer and are permitted to have contact with the Performer. If you are not the parent or legal guardian, you agree that you have explicit consent from the parent or legal guardian of the Performer to access the Performer Data. 

5.2 As a parent, guardian or Family Member, you will only be able to access a PerformerData that has been shared with you. You agree to use Performate for lawful purposes and you will abide by applicable laws and any school policies.  

6. Submissions of content to Performate 

6.1 If you publish User Content on Performate, you agree that: 

a) you are the copyright holder, you have the consent of the copyright holder, or you have a valid legal basis (for example, fair use) for posting that User Content; and  

b)you have secured permission to share the Personal Information and Sensitive Information (if applicable) of any person included in the User Content. 

6.2 For as long as your User Content is published on Performate, your User Content may be shared by your Participating Organisation (including other Teachers using Performate in your Participating Organisation). Teachers using Performate may also modify your User Content and re-share it with their Performers or other Teachers. 

6.3 Subject always to the terms of clause 11.2, if you remove User Content from Performate, prior copies of User Content or modified versions of UserContent may still exist against the Participating Organisation and will not be removed. 

7 Use of Performate  

7.1 You must comply with any reasonable directions as notified by us to you from .time to time in relation to use of Performate. 

7.2 You must not: 

a) sell, sub-licence distribute or transfer any part of your right to access and use Performate for commercial purposes; 

b) use Performate in any way or for any purpose other than as specifically contemplated by these Terms; 

c) attempt to modify, adapt, translate, de-compile, disassemble, copy or otherwise reverse engineer or reverse compile Performate (or any part of it); 

d) attempt to circumvent or break any encryption, decryption or other security device or technology measure(s) contained in Performate  or that control access to or use of Performate;  

e) attempt to interfere with or disrupt Performate; 

f) copy, alter, customise, modify or create derivative works of Performate; 

g) tamper with, hinder the operation of or make unauthorised modifications to Performate;  

h) use data mining or similar data gathering tools or attempt to copy any of the data available on Performate; or 

i)use Performate for any unlawful purpose, including in contravention of Privacy Laws. 

8. Your obligations 

8.1 You are solely responsible for: 

a) providing (at your own cost) all devices, software and internet access necessary t to access and use Performate; and  

b) ensuring that your information technology environment interfaces with and is compatible with Performate. 

8.2 You must:  

a) immediately report any security violations or misuse of Performate to us; 

b) not alter, change, remove or obscure any notices or other indications (including copyright notices) as to ownership of Performate;  

c) notify us as soon as reasonably practicable where any relevant consents (for example those outlined under clause 3) are withdrawn; 

d) act reasonably and in good faith in exercising any right, remedy, discretion or obligation under these Terms, at law or otherwise; and 

e) comply at all times with applicable laws, protocols, policies and guidelines.  

8.3 If any delay or failure by us to comply with our obligations under these Terms is caused or contributed to by any failure by you or your Personnel to comply with your obligations under these Terms, then we will not be responsible for the delay or failure. 

8.4 We may suspend your access to Performate at any time if required under law or if we reasonably consider that you are in breach of these Terms. 

9. Security  

9.1 You acknowledge that any log-in details used to access Performate are confidential and must ensure that this information is kept secure from unauthorised access, use or modification. 

9.2 You are solely responsible for any use (or misuse) of Performate arising from a failure to keep information secure in accordance with clause 9.1. 

10. Privacy  

10.1 We collect certain data and information about you in connection with your use of Performate, about your Performer if you are a parent or guardian and otherwise in connection with these Terms.  We collect and use all such data and information in accordance with our privacy policy available at Performate Privacy Policy which you acknowledge. 

11. Your Intellectual Property 

11.1 Performate may allow you to store or share content such as text (in posts or communications with others), files, documents, graphics, images, music, software, audio, and video. Anything that you post or otherwise make available through Performate is referred to as “User Content”.  

11.2 We do not claim any ownership rights to any Performer Data or User Content and nothing in these Terms will be deemed to restrict any rights that you may have to your User Content. However, in order to provide Performate, we require certain limited rights to Performer Data and User Content. For example, when you upload your Performer Data and/or User Content, we must be able to store it, serve it back to you and use it for the purpose of improving Performate. Therefore, you grant Performate a non-exclusive, transferable, worldwide, royalty-free license, with the right to sublicense, to use, publish, transmit, display, copy, process, adapt, modify, publicly perform, and distribute your Performer Data and User Content in connection with operating and providing Performate. 

11.3 You are solely responsible for all your User Content.  You represent and warrant that you have (and will have) all rights that are necessary to grant us the license rights in your User Content under these Terms. You represent and warrant that neither your User Content, nor your use and provision of your User Content to be made available through Performate, nor any use of your User Content by us on or through Performate will infringe, misappropriate or violate a third party’s intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation. 

12. Performate Business’ Intellectual Property  

12.1 All content on Performate that is not Performer Data or User Content, including but not limited to logos, trade marks, copyrights, domain names, or other distinctive brand features (collectively, “Performate Content”) is protected by copyright, trade mark, and other intellectual property laws and is the exclusive property of Performate and/or its licensors.  

12.2 We and our licensors grant you a limited, non-exclusive, non-transferable license to view, copy, and display Performate Content solely in connection with your permitted use of Performate, for the Terms Period.  

12.3 Any rights not expressly granted here are reserved. Unauthorised use of Performate Content is prohibited.  

12.4 You agree not to remove, alter or obscure any copyright, trademark, service mark, or other proprietary rights notices incorporated in or accompanying Performate. 

13. Confidentiality 

Each Party agrees to keep confidential, and not to use or disclose, other than as permitted in these Terms, any Confidential Information of the other Party, except: 

a) as required by law, a regulatory authority, or a stock exchange, provided that it gives the other Party written notice prior to disclosure; 

b) with the prior written consent of the Party who supplied the information; 

c) if the information is in the public domain or comes into the public domain other than as a result of breach of these Terms;  

d) if the recipient Party already knew or had, on a non-confidential basis, the information before receiving it; or 

e) if the recipient Party independently developed or acquired the information, without a breach of these Terms or other breach of confidence. 

13.2 Each Party agrees to take all prudent steps, including maintaining effective security measures, to protect the Confidential Information of the other Party from unauthorised access, use, copying or disclosure. 

13.3 Each Party must only use Confidential Information of the other Party for the purpose for which it was disclosed in connection with these Terms. 

14. Subscription Fees  

14.1 If you are a Participating Organisation, you must pay us the applicable Subscription Fees as specified in your Purchase Order. We will invoice you for the Subscription Fees at the times and in the manner agreed (or if no invoicing details are agreed), then we will invoice you for the Subscription Fees monthly and in advance. 

14.2 Unless agreed otherwise, all Subscription Fees are payable within seven (7) days of the date of the relevant invoice.   

14.3 If any Subscription Fees payable to us under these Terms are not paid within seven (7) days of the due date for payment, we will notify you that your subscription will cease on your Expiry Date and only accessible by your Participating Organisation Administrator. 

14.4 If you reinstate an expired subscription within 30 days of lapsing, the new subscription Expiry Date is extended from the original Subscription Date (ie. it does not reset) for the term being. 

14.5 For monthly subscription plans you must pay in full the current monthly plan Subscription Fee plus the next monthly Subscription Fee, before your subscription can be reinstated. 

14.6 For yearly subscription plans you must pay the full yearly plan Subscription Fee, before your subscription can be reinstated. 

15. Taxes 

15.1 Except where the context suggests otherwise, terms used in this clause 15 have the meanings given to those terms by the A New Tax System (Goods and Services Tax) Act 1999 (as amended from time to time). 

15.2 Unless otherwise expressly stated, all Subscription Fees payable under these Terms are exclusive of GST (or equivalent taxes).  Any consideration that is specified to be inclusive of GST must not be taken into account in calculating the GST payable in relation to a supply for the purpose of this clause 15. 

15.3 If GST is payable in relation to a supply made under or in connection with these Terms, then any Party (“Recipient”) that is required to provide consideration to another party (“Provider”) for that supply must pay an additional amount to the Provider equal to the amount of that GST (“GST Amount”) at the same time as any other consideration is to be first provided for that supply, or if later, within 7 days of the Provider providing a valid tax invoice to the Recipient. 

16. Disputes 

16.1 Neither Party will commence court proceedings or action against the other Party under or in connection with these Terms (other than where urgent interlocutory relief is required) unless it has first attempted to resolve the dispute using the following process (the “Dispute Resolution Process”): 

16.2 following notice from either Party invoking the Dispute Resolution Process, the Parties must meet within 7 days or such other time as agreed to discuss and attempt to resolve the dispute; and 

16.3 failing resolution of the dispute within 20 days after the first meeting between the Parties in accordance with clause 16.1(a), the Parties must refer the matter to a mediation to occur in Perth, Western Australia and be conducted in accordance with the Australian Disputes Centre (ADC) Mediation Guidelines and with a mediator as agreed by the Parties or, failing agreement, as appointed by the CEO of the ADC.   

17. Warranties and Exclusions 

17.1 Each Party warrants at the Effective Date and throughout the Terms Period that: 

a) it has the legal authority and power to enter into these Terms and to perform its obligations under these Terms; and 

b) it has all necessary rights, licences, permits and consents to enter into and to perform these Terms. 

17.2 We warrant that Performate Business will substantially conform to any applicable product and service specifications that we provide you in writing. 

17.3 Your sole and exclusive remedy, and our sole liability, under or in connection with a breach of clause 17.2, will be the re-supply of Performate in accordance with the warranty in clause 17.2, or if this is commercially impracticable, termination of these Terms and a refund of any unused pre-paid Subscription Fees for the remaining period in the Terms Period as at the date of termination. 

17.4 Subject to any non-excludable terms and any express warranties in these Terms, Performate is provided by us “as is”.  To the fullest extent permitted by law, we exclude all warranties, representations, implied terms and guarantees not expressly stated in these terms, including any warranty or representation that Performate will be fit for any particular purpose, will be free of any viruses or disruptive code, and will be error-free or uninterrupted. Performate Business does not make any representations or warranties with respect to the outputs of Performate or any results of use of Performate. 

17.5 For the avoidance of doubt, nothing in these Terms is intended to exclude any guarantees which by law cannot be excluded or modified.  If we are liable for breach of any guarantee or warranty that cannot be excluded or modified by law, then to the extent permitted by law, our liability for that breach will be limited to (at our discretion) re-supplying Performate or payment of the cost of having Performate supplied again in accordance with the respective guarantee. 

You acknowledge and agree that: 

a) any use of, or reliance on, information which is made available to you through Performate is undertaken entirely at your own risk; and 

b) we do not control the transfer of data over the internet and that access to Performate may be subject to limitations, delays, and other problems inherent in the use of the internet. 

18. Indemnity 

18.1 You agree to indemnify us, and our Related Bodies Corporate and their respective directors, officers, agents and employees, from and against any Loss (including Loss arising in connection with third party claims) suffered, paid, or incurred by us arising out of or in connection with: 

a) any breach by you or your Personnel of your obligations under these Terms, except to the extent that such Loss is caused or contributed to by us; or 

b) any claim that Performer Data or User Content infringes the rights (including Intellectual Property Rights) of any third party; or  

c) any breach of applicable laws. 

19. Liability 

20.1 Subject to clause 19.2, and to the extent permitted by law, Performate Business’ maximum cumulative liability for any Loss sustained by you under or in connection with these Terms will be limited to $10,000 or the amount of Subscription Fees paid by you for the use of Performate, whichever is less. 

20.2 Performate Business’ liability for Consequential Loss on any basis including under tort (including negligence), under statute, for breach of contract, at common law or in equity is entirely excluded. 

20. Termination  

20.1 Either Party may, without prejudice to any other right of action or remedy, terminate these Terms effective immediately by written notice to the other Party if the other Party:  

a) breaches a material provision of these Terms and fails to remedy it within seven (7) days of receiving a notice from the Party not in breach detailing the breach and requesting that it be rectified;  

b) breaches a material provision of these Terms which is incapable of remedy; or 

c) enters or threatens to enter into bankruptcy, liquidation or other type of insolvency, administration, management or receivership, or ceases or threatens to cease to conduct business to properly give effect to these Terms. 

20.2 You may terminate these Terms at any time by providing us at least 30 days’ notice in writing before the next Subscription Fees are due.  However, if you terminate other than by reason of clause 20.1, you will forfeit any Subscription Fees paid to us as at the date of termination.  

20.3 In addition to our rights of termination under clause 20.1, we may terminate all or part of these Terms, suspend your access to and use of, or downgrade your subscription to Performate: 

a) if you have not paid a correctly rendered and undisputed invoice within seven (7) days after the date on which payment is due, and we have provided you with written notice that payment is overdue, and you have not made payment within seven (7) days of receiving such notice; 

b) immediately if you are in breach of clause 7.1; or 

c) for convenience by providing you with 30 days’ notice in writing.  

21. Consequences of termination 

21.1 Subject to clause 11, upon termination of your subscription to Performate, or expiry of these Terms: 

a) any user access accounts we have provided to you will expire, and only the Participating Organisation Administrator will be able to use Performate to view your data in a read-only mode for 30 days from the subscription expiry date.  The only active feature will be to export your data (excluding video and audio). Subject to clause 6.3, your data and user accounts will then be deleted and/or de-identified 30 days after your subscription lapses.; 

b) each Party will promptly return to the other Party (or if requested to do so, securely destroy and certify the destruction of) all copies of all Confidential Information of the other Party in their possession or control, except to the extent that the Party is required by law to retain a copy of such Confidential Information or otherwise permitted to do so by these Terms. 

21.2 Despite any other provision of these Terms, this clause 21, 13 (Confidentiality), 16 (Disputes), 18 (Indemnity), 19 (Liability), and 22 (General), and any other obligations which are expressed to or, by their nature, survive expiry or termination of these Terms and will continue to the benefit of and be enforceable by us.  

22. General Provisions 

22.1 Waiver: No waiver of a right or remedy under these Terms is effective unless it is in writing and signed by the Party granting it. 

22.2 Rights cumulative: Except as expressly stated otherwise in these Terms, the rights of a Party under these Terms are cumulative and are in addition to any other rights of that Party. 

22.3 Consents: Except as expressly stated otherwise in these Terms, a Party may conditionally or unconditionally give or withhold any consent to be given under these Terms and is not obliged to give its reasons for doing so. 

22.4 Further steps: Each Party must promptly do whatever the other Party reasonably requires of it to give effect to these Terms and to perform its obligations under it. 

22.5 Governing law and jurisdiction: These Terms are governed by and are to be construed in accordance with the laws applicable in the State of Western Australia. Each Party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts exercising jurisdiction in the State of Western Australia and any courts which have jurisdiction to hear appeals from any of those courts and waives any right to object to any proceedings being brought in those courts. 

22.6 Assignment: A Party must not assign or deal with any right under these Terms without the prior written consent of the other Party.  Any purported dealing in breach of this clause is of no effect. 

22.7 Entire understanding: These Terms constitutes the entire agreement between the Parties in connection with its subject matter and supersedes all previous agreements or understandings between the Parties in connection with the relevant subject matter. 

22.8 Relationship of Parties: These Terms are not intended to create a partnership, joint venture or agency relationship between the Parties. 

23. Definitions 

In this document: 

Confidential Information of a Party means in respect of a Party (the disclosing Party) any information obtained by the other Party from the disclosing Party or any Personnel or Related Body Corporate of the disclosing Party that is by its nature confidential, is designated as confidential by the disclosing Party or that the other Party knows or ought reasonably to know is confidential. 

Consequential Loss means any special, indirect or consequential loss or damage not arising as a natural consequence of a breach or other event giving rise to liability of a Party; and loss of revenue, loss of production, loss of use, loss of opportunity, loss of profit or anticipated profit, loss or contracts, loss of goodwill or wasted overheads whatsoever or loss of data; and any loss, expense or damage not within the contemplation of the Parties as at the Effective Date.  

Effective Date is the date you subscribe to Performate. 

Family Member means a person who is at least 18 years old and who is an immediate family member of a Performer who is using Performate.  

Intellectual Property Rights means any rights normally covered with this term and includes existing and future copyrights, rights in designs, patents, trade marks all rights in any applications or registrations of those rights whether registered or unregistered (and whether registrable or not) and existing anywhere in the world. 

Loss means loss, damage, claim, liability, charge, expense, outgoing or cost (including all legal and other professional costs on a full indemnity basis) of any nature or kind. 

Minor means a Performer who is under the age of when they can legally enter into a contract.  

Parties means the Performate Business and you, and Party means either the Performate Business or you, as the context requires. 

Performate means the app, application or solution produced by Performate Business and made available for use by other parties. 

Performate Content has the meaning given to it in clause 12.1. 

Performer is an individual that undertakes a physical activity that is able to be assessed, and could be a student, adult, child, patient or Minor. 

Performer Data means any data, Personal Information (including Sensitive Information) that is captured, entered or recorded to enable authorised representatives of Participating Organisations (such as Teachers) to make an assessment of a Performer’s performance; this data includes and is not limited to scores, textual and graphical notes, markups, video recordings and audio recordings.  

Performate Business means Amarone Pty Ltd ATF Amarone Trust and Diversus Pty Ltd ATF Freestyle Holdings Trust T/AS Diversus (ABN 17 200 802 843). 

Personal Information holds the meaning given to the term in the Privacy Act 1988 (Cth). 

Personnel means, in relation to an entity, that entity’s directors, officers, employees, agents (including Teachers) and contractors and includes directors, officers, employees and agents of that Party’s contractors. 

Privacy Laws means means the Privacy Act 1988 (Cth), (including the Australian Privacy Principles contained therein), and any other applicable legislation, principles, industry codes and policies relating to privacy or Personal Information and Sensitive Information (including the collection, use, disclosure, storage or granting of access rights to Personal Information and Sensitive Information). 

Purchase Order means the form (physical or electronic) completed by you indicating your intention to purchase Performate.   

Related Body Corporate has the meaning given in the Corporations Act 2001 (Cth). 

Participating Organisation means, in relation to an entity using Performate as an educational institution, school, club, or any other organisation that uses Performate to undertake assessment. 

Participating Organisation Administrator is a Participating Organisation user that has the privileged role of an Administrator, and can manage the organisation data and subscription. 

Sensitive Information has the meaning given to the term in the Privacy Act 1988 (Cth). 

Subscription Date means [insert].  

Subscription Fees means the fees payable by a Participating Organisation for the provision of the licence described in these Terms. 

Teacher means an individual who is appropriately authorised by the Participating Organisation to capture Performer performance and/or undertake assessments of that Performer’s performances. 

Teacher Account has the meaning outlined under clause 4. 

Terms Period is the period for which the Terms will continue to apply to, and govern your use of Performate, which will continue until the date specified in the Purchase Order (Expiry Date), or until these Terms are terminated in accordance with clause 20. 

User Content has the meaning set out in clause 11.1. 

24. Construction 

Unless expressed to the contrary, in this document: 

a) “includes” means includes without limitation; 

b) a reference to: 

(i) a person includes a partnership, a joint venture, an unincorporated association, a corporation and a government or statutory body or authority; 

(ii) a person includes the person’s legal personal representatives, successors, assigns and persons substituted by ovation; 

(iii) this document includes all schedules and annexures to it; and 

c) headings do not affect the interpretation of this document.