website terms + conditions

subscription terms + conditions

Subscription Agreement Terms and Conditions

PLEASE READ THE TERMS AND CONDITIONS OF THIS SUBSCRIPTION AGREEMENT CAREFULLY. BY APPLYING FOR THE SERVICE, YOU ARE AGREEING TO BE BOUND BY THIS AGREEMENT AS FROM THE DATE YOU APPLY TO FOR THE SERVICE. IF YOU DO NOT ACCEPT THE TERMS OF THIS AGREEMENT, YOU SHOULD NOT PROCEED WITH YOUR SUBSCRIPTION.

These are the standard Terms and Conditions of Subscription which apply to a Subscription to the Service, owned and operated by myYardstick Holdings Pty Ltd (MYP, we, us and our), by you and your agents, sub-contractors and permitted assigns (You and Your).

This Agreement applies in addition to and does not derogate from any other terms and conditions that expressly apply to use of the Website, or any other product or services accessed or supplied from, on via or by MYP or the Website.

Operative provisions

partner agreement

PLEASE READ THE TERMS AND CONDITIONS OF THIS MYP CERTIFIED PARTNER AGREEMENT CAREFULLY. BY AGREEING TO THE TERMS OF THIS AGREEMENT, YOU ARE AGREEING TO BE BOUND BY THIS AGREEMENT AS FROM THE DATE YOU SUBMIT YOUR ACCEPTANCE OF THESE TERMS AND CONDITIONS. IF YOU DO NOT ACCEPT THE TERMS OF THIS AGREEMENT, DO NOT PROCEED.

These are the standard Terms & Conditions which apply to MYP Certified Partners (You and Your) introducing Subscribers to the Subscription Service owned by myYardstick Holdings Pty Ltd (MYH, We, Us and Our) and distributed by Our Licensee MYP Corporation Pty Ltd (MYPCorp).

This Agreement applies in addition to and does not derogate from other terms and conditions that expressly apply to use of the Subscription Service, or any other products or services supplied from, on or by MYH, MYPCorp or the Website.

OPERATIVE PROVISIONS

  1. GRANT OF RIGHTS

    We grant to You the non-exclusive right from the date of Your acceptance of this Agreement until it is validly terminated to introduce or resell the Products to Subscribers as permitted by this Agreement.

  2. CERTIFIED PARTNER STATUS AND CERTIFIED TRAINER STATUS

    As an MYP Certified Partner, you agree to be allocated the status of either MYP Partner or MYP Platinum Partner. Your obligations and rights as an MYP Partner or MYP Platinum Partner are as specified in this Agreement and Schedule.

    You agree that We have the right to vary your Status from MYP Platinum Partner to MYP Partner at any time at Our discretion when you fail to meet the Requirements and/or Sales Targets of the MYP Platinum Partner status as specified in this Agreement and Schedule.

    You agree that We have the right to vary your Status from MYP Partner to MYP Partner (on hold) at any time at Our discretion when you fail to meet the Requirements and/or Sales Targets of the MYP Partner status as specified in this Agreement and Schedule

    An MYP Certified Partner may also be granted by Us the non-exclusive right to be an MYP Certified Trainer and provide training services to MYP Subscribers on MYP modules in which they have been certified.

    MYP Certified Trainer status may be terminated at any time by Us as a consequence of a breach of this MYP Partner Agreement as specified in section 8 ‘Termination’ and section 6 of the Schedule ‘Requirements to maintain MYP Certified Trainer Status’.

  3. AUTHORITY OF CERTIFIED PARTNER

    1. Relationship

      This Agreement establishes a relationship which is solely that of supplier and reseller of the Products and does not imply a relationship of partnership or joint venture agency or any relationship which would enable You to bind Us.

    2. Authorised Representations

      You may not make any representation regarding the Products to Subscribers which is not set out in Our published specifications and material with respect to the Products and the Documentation. Any contract put forward by You in connection with the Products shall be between the Subscriber and Us, unless otherwise agreed in writing.

    3. Subscriber Support

      We will provide user support to Subscribers and Users who have completed relevant Certified Product Training with Us. Where a user experiences a technical fault, MYPCorp will provide support through the online MYP Support Centre.

  4. OBLIGATIONS OF CERTIFIED PARTNER

    1. Marketing and Promotion of Products

      1. You shall at Your own cost and expense use all commercial endeavours to promote and market the Products, seek orders for the Products, and carry out the other duties specified in this Agreement using all due care and in accordance with sound commercial principles and shall obey all Our instructions in relation to the intended use of the Products.

      2. You shall indemnify Us and keep Us indemnified against any and all loss, fees and costs incurred by Your breach of this Agreement by You including:

        1. any act or neglect or default by Your agents, employees or contractors;

        2. breaches resulting in any successful claim by any third party alleging libel or slander in respect of any claim in any approved documentation or any other matters arising from the resale of the Products PROVIDED THAT such liability has not been incurred by Us through any default on Our part in carrying out the terms of this Agreement.

      3. You shall pay all expenses of and incidental to performing Your obligations under this Agreement.

  5. INTELLECTUAL PROPERTY RIGHTS

    1. Key terms

      1. Neither this Agreement nor any licence or sub-licence granted hereunder shall be construed to convey or transfer any ownership or proprietary interest in any Intellectual Property Rights in the Products, Documentation or the Marks to You or any third party.

      2. Except to the extent that We cannot prohibit such acts by law, You agree not to translate, adapt, vary, modify, disassemble, decompile or reverse engineer the Products and/or Documentation or create derivative works of the same for any purpose (including error correction or any other type of maintenance) without Our prior written consent.

      3. You undertake:

        1. not to cause or permit anything which may damage or endanger Our Intellectual Property Rights or Our title to them or assist or allow others to do so;

        2. not to cause or permit anything which may damage or endanger Our Intellectual Property;

        3. to notify Us of any actual, threatened or suspected infringement of Our Intellectual Property Rights;

        4. to notify Us of any claim by any third party that the Products infringe any Intellectual Property Rights of any third party;

        5. to take such reasonable action as We may direct at Our expense in relation to such infringement claim;

        6. to affix such notices and warnings to the Products or their packaging or advertising as We shall require.

      4. MYP acknowledges that where a Subscriber and/or a Partner contracts MYP to design, develop, create or construct a Business System or Business Systems, title in the contracted Business System or Business Systems, excluding MYP's proprietary framework and the data that is associated with the contracted Business System or Business Systems, is transferred to the Business System Owner who contracted the Business System on the commercial terms specified in the contract and this Agreement until:

        1. termination of the Subscriber's subscription; or

        2. lapse of the Subscriber's subscription; or

        3. lapse or termination of their status as an MYP Partner.

        In the event of either termination or lapse of the Subscriber's subscription or MYP Partner Status, all right, title or interest in Your Business System or Business Systems transfers to MYH, unless agreed in writing by MYH or MYPCorp to the contrary;

      5. You acknowledge that where You have agreed that Your Business System will be offered for Sale or Subscription in Our Marketplace to Our current or future Subscribers, Your Business System cannot be withdrawn from Our Marketplace for Sale or Subscription at any time without Our written agreement.

    2. License

      We grant to You a limited license to use the Intellectual Property Rights for the purposes of this Agreement but subject to the following restrictions:

      1. the license will be non-exclusive;

      2. You shall not have the right to appoint any sub-licensee; and

      3. You shall have no right to use the Intellectual Property Rights for any purpose other than as is expressly permitted by this Agreement.

    3. Introductions

      We grant to You a right to introduce other Certified Partners to Us. Where You introduce other Certified Partners to Us and the Introduced Certified Partner enters into this agreement with Us and the Introduced Certified Partner introduces Subscribers to Us, You will receive the Remuneration from these Subscriptions as specified in the Schedule in this Agreement.

    4. Assignment

      You hereby assign all Rights, title and interest absolutely both now and in the future to any Improvements and goodwill to Us and in doing so agree to execute all documents and do all things necessary including making full disclosure to assure this assignment.

    5. Third Party Claims

      We shall defend, at Our expense, any claim (the ‘Claim’), brought against You alleging that any Product and/or Documentation as acquired under this Agreement infringes an Intellectual Property Right of a third party. We shall pay all costs and damages awarded or agreed to in settlement of a Claim PROVIDED THAT You furnish Us with prompt written Notice of the Claim and provide Us with reasonable assistance and sole authority to defend or settle the Claim.

  6. PRICES AND CHARGES

    1. Prices

      You shall resell the Products as directed by Us and in accordance with Our pricing policy which may be varied from time to time by Us.

    2. Remuneration

      We shall pay Your Remuneration in the manner specified in the Schedule in this Agreement from all completed Product sales by You.

  7. WARRANTIES

      1. We warrant that the Products shall function in accordance with their specifications as published from time to time by Us in the Documentation.

      2. We make no representation or warranty, express or implied, by way of example, of merchantability or fitness for any particular purpose. We shall not be held to any liability with respect to any claim by You or a third party on account of or arising from the use of the Products.

      3. We shall not be liable to the Certified Partner or any other party for any loss, damage, or injury that results from the use or application by You, a Subscriber, or any other party, of Products delivered to You. In no event shall We be liable to You or any other party for loss, damage, or injury of any kind or nature arising out of or in connection with these terms and conditions, or any agreement into which they are incorporated, or any performance or non-performance under these terms and conditions by Us, Our employees, agents or subcontractors, in excess of the net purchase price of the Products or services actually delivered to and paid for by You. In no event shall We be liable to You or any other party for indirect, special or consequential damages, including, but not limited to loss of goodwill, loss of anticipated profits, or other economic loss arising out of or in connection with Our breach of, or failure to perform in accordance with any of these terms and conditions, or the furnishing, installation, servicing, use or performance of any Products or information We shall provide hereunder, even if notification has been given as to the possibility of such damages. You hereby expressly waive any and all claims for such damages.

  8. TERMINATION

    1. By Us

      We may terminate this Agreement by Notice if You:

      1. fail to have Subscribers enter into a direct arrangement with Us pursuant to Our Products License terms and conditions; or

      2. fail to pay all prices, charges and fees direct to Us when and as they are due where You have a direct arrangement with Subscribers and are purchasing Our Products and Services on behalf of the Subscriber; or

      3. fail to fulfil any Obligation hereunder despite Notice to You to fulfil such Obligation within fourteen (14) days of Notice; or

      4. the making or filing of an application to wind You up (otherwise than for the purpose of reconstruction or amalgamation) under any law or government regulation relating to bankruptcy or insolvency;

      5. the appointment of a receiver, agent or manager for all or substantially all of Your property;

      6. the making by You of an assignment, arrangement or composition whether formal or informal for the benefit of Your creditors;

      7. the institution by You of any proceedings for the liquidation or winding up of Your business;

      8. Your staff or representatives fail to implement lawful policies, procedures, systems or processes in relation to the training or coaching of Subscribers as specified by Us; or

      9. fail to attend or participate in Certified Partner meetings with Us as specified by Us;

      10. fail to achieve the minimum Performance Requirements of an MYP Partner in any 12 month period following the date of commencement as an MYP Partner.

    2. Consequences

      If We terminate this Agreement in accordance with clause 8.1, You shall:

      1. immediately return all Products, all Documents, promotional material brochures and other tangibles supplied Us to You and in Your possession;

      2. within one (1) week of the effective date of termination or expiration of this Agreement, deliver, transfer and return to Us all copies and stocks of all forms, stationery, business cards, advertising material and other printed matter within Your possession, power, custody or control, which bear Our trademarks;

      3. within one (1) week of the effective date of termination or expiration of this Agreement, delete all references, logos, information, images related to Us from Your website, emails and all other electronic formats associated with You and other electronic matter within Your possession, power, custody or control, which bear Our trademarks;

      4. immediately cease to use the Intellectual Property Rights and Confidential Information; and

      5. not hold Yourself out as having any Rights whatsoever in relation to the Products, the Intellectual Property Rights or any association with Us.

    3. In addition, in the event that this agreement is terminated, where You have a direct arrangement with Subscribers, these Subscribers will have their arrangement for use of the Product and Services transferred immediately to Us.

  9. CONFIDENTIAL INFORMATION AND PROPRIETARY RIGHTS

    You shall treat as confidential and not disclose to any third party or use on Your behalf any of Our Confidential Information which You may obtain under this Agreement, except that You may use such information to the extent necessary for the performance of this Agreement.

  10. FORCE MAJEURE

    If a party is prevented, hindered or delayed from performing its Obligations under this Agreement (other than an Obligation to pay money) by an Event of Force Majeure, and that party notifies the other of the event, then as long as that situation continues, that party shall be excused from performance of the Obligation to the extent it is so prevented, hindered or delayed, and the time for performance of the Obligation shall be extended accordingly, but time shall continue to remain of the essence.

  11. RETENTION OF TITLE

    All Products, tools, collateral, systems, methodologies etc supplied by Us to You under the terms of this Agreement shall remain Our sole and absolute property both in law and in equity until You shall have paid the agreed price and, during that time, You acknowledge that You are bailee of the Products for Us PROVIDED THAT no title shall pass in respect of software which is licensed only and any implied or actual licence hereunder is revoked upon non-payment.

    1. The Products shall be at Your insurable risk as soon as they are delivered by Us to Your premises or otherwise to Your order.

    2. Notwithstanding the above provisions, You shall be entitled to resell the Products in the ordinary course of the business but shall account to Us for the proceeds of sale.

  12. GENERAL PROVISIONS

    1. Variation

      We may vary this Agreement with a minimum of thirty (30) days notice. Such notice may be given to you in writing and/or digitally via email, MYP Partner eNews or any other digital format.

    2. Assignment

      You shall not be entitled to assign Your Rights or Obligations under this Agreement without Our prior written consent, which consent may be given or withheld, or given on conditions, that We, in Our absolute discretion, decide.

    3. Proper Law, Jurisdiction

      This Agreement is governed by and construed in accordance with the laws of Queensland, Australia.

    4. Severability

      If any provision of these terms and conditions shall be held to be invalid, illegal or unenforceable such provision shall be forced to the full extent permitted by applicable law and the validity, legality and enforceability of the remaining provisions shall not in any way be effected or impaired by it thereby.

    5. Entire Agreement

      This Agreement constitutes the entire agreement between the parties.

  13. DEFINITIONS AND INTERPRETATION

    1. Definitions

      In this Agreement, unless the context or subject matter otherwise require:

      ‘Annual Partner Points’ means the annual points required by You to retain Partner Platinum status and the benefits of that status as specified in the Schedule;

      ‘Business System/s’ means any business or organisational activity, action, process, task, information, method, program, concept, technique and/or other proprietary knowledge that accesses, uses, incorporates, engages, integrates with and/or is developed with or uses MYH’s proprietary framework, program or module;

      ‘Business System/s Owner’ means any person, business, organisation, Partner or Subscriber who contracts MYPCorp to design, develop, create or construct a Business System or Business Systems;

      ‘Partner’means the MYP Certified Partner or MYP Partner;

      ‘Certified Product Training’ means training provided to Users on the Products by a trainer certified by Us that enables the Subscriber to access Level 2 support from Us;

      ‘Clear Funds’ means money that has been deposited with Us and is free of any encumbrance and can be used in any lawful manner determined solely by Us;

      ‘Confidential Information’ shall mean all the information relating to the Products including but not limited to:

      1. the pricing structure for the Products;

      2. business plans, marketing plans, information memorandums, product plans, source code and object code for the Products and trade secrets;

      3. all of Our other trade secrets and proprietary information relating to the Products, business affairs and finances or other information made available to You in confidence and designated as Confidential Information by Us on or before the date of such disclosure.

      The Confidential Information does not include any information that:

      1. is or becomes generally known within the Territory without breach of the terms of this Agreement or any other non-disclosure agreement;

      2. is required to be disclosed pursuant to the order or court or agency or government entity having jurisdiction over You; or

      3. is independently developed by You or is acquired by You from a third party through no act of wrongdoing or breach of any nondisclosure agreement by the Certified Partner or such third party.

      ‘Current Subscriber/s’ means a person, company, trust or other entity that has subscribed to the Products and who, at that time, are not in breach of any MYP website or subscription Terms + Conditions;

      ‘Documentation’ means all manuals, documents, brochures and technical information supplied by Us in relation to the Products;

      ‘Improvements’ means any improvement, modification, enhancement, derivative, application or use of the Products conceived, created or arising during or subsequent to Your access to the Intellectual Property Rights including all Future Rights to such Intellectual Property Rights;

      ‘Intellectual Property Rights’ means;

      1. jointly and severally any Rights as they relate to Our Confidential Information, trademarks or corporate indicia, the copyright, the design rights, the patent rights, the eligible layout rights, the Improvements; and

      2. any application or Right to apply for registration of any of the Rights referred to in the subclause (a) so far as they relate to, protect or form part of the Products.

      ‘Introduced Certified Partner’ means a person, company, trust or other entity who was introduced to Us by You and who has subsequently become Our Certified Partner;

      ‘MYP Partner (on hold)’ means that You are in breach of the minimum MYP Partner Performance Requirements and that all MYP Partner payments to You by Us will cease until You are no longer in breach of the minimum MYP Partner Performance Requirements;

      ‘MYP Products License’ means the standard terms and conditions entered into between Us and any Subscriber as detailed on Our website which may be varied by Us at any time in accordance with those terms and conditions;

      ‘Notice’ means a written notice, consent, approval, direction, order or other communication;

      ‘Obligation’ means any legal, equitable, contractual, statutory or other obligation, agreement, covenant, commitment, duty, undertaking or liability;

      ‘Products’ means MYP modules, apps, diagnostics, systems, reports, applications delivered in a Software-as-a-Service environment by Us and as they exist and are developed from time to time and over time;

      ‘Remuneration’ means the amount paid to Partners and/or Business System Owners as specified in the Schedule;

      ‘Right/s’ means an entitlement to ownership of property or some interest in either real or personal property;

      ‘Sales Target’ means the annual Product sales target for Certified Partners as specified in the Schedule in this Agreement;

      ‘Services’ means information, consulting, training, coaching, support and any other services provided by Us through Our staff, representatives, contractors or the MYP application;

      ‘Specified Persons’ means the person named as such in the Reference Schedule;

      ‘Subscriber’ means a person, company, trust or other entity that has subscribed to the Products;

      ‘Users’ means a person who has been granted access to the Products by a Current Subscriber.

SCHEDULE

  1. Certified Partner Status Requirements, Sales Targets & Remuneration

    We offer three (3) types of Certified Partner Status and, unless otherwise agreed in writing by Us, the Partner Remuneration for each Certified Partner level is as specified below:

    Partner Level Description of Requirements Performance Requirements1 Partner Remuneration2
    MYP Partner² Introduces Subscribers to MYP and/or processes new subscribers through the MYP website Introduce/secure a minimum of one new Subscriber during each 12 month period following the date of commencement as an MYP Partner 10% of subscription income from introduced Subscribers for the term of their subscription while MYP Partner status in force
    MYP Platinum Partner³ Introduces Subscribers to MYP and/or processes new subscribers through the MYP website

    Achieves the minimum sales target requirements and the annual points requirements to retain MYP Platinum Partner status⁴
    Introduce/secure a minimum of five new Subscribers in the first 12 months

    Retention of five or more Subscribers in perpetuity after the first 12 months

    Introduce/secure at least four new Subscribers each year after the first 12 months
    20% of subscription income from introduced Subscribers for the term of their subscription

    10% of subscription income from Subscribers introduced by MYP Partners or MYP Platinum Partners who have been introduced to Us by You
    Education Partner Achieves the minimum Sales target requirements Secure at least 10 surveys during each 12 month period following date of commencement as an Education Partner 20% reduction on standard School Results Surveys subscription fee

    1 Where an MYP Partner fails to meet their Performance Requirements, they will lose their entitlement to Partner Remuneration until the Performance Requirements have been met.

    2 You are responsible for ensuring Your unique Certified Partner code is entered when introducing or subscribing a new Subscriber to MYP. Failure to comply with this may result in the Subscriber not being connected to You and, as a consequence, the Certified Partner Remuneration will not be paid to You. You agree that We will not be liable for Partner Remuneration where You have failed to provide your Certified Partner code when subscribing a new Subscriber.

    3 Where an MYP Platinum Partner fails to meet their performance requirements or annual points requirements, the Certified Partner will lose their MYP Platinum Partner status and will be converted to an MYP Partner by Us until they have again achieved the minimum requirements of the MYP Platinum Partner. Where an MYP Platinum Partner loses their Platinum status, the Partner Remuneration for existing and new Subscribers they have introduced will be altered to reflect their current Certified Partner status.

    4 To retain MYP Platinum Partner Status, the MYP Platinum Partner must achieve a minimum of 100 MYP Points every 12 months following the commencement of this Agreement. The MYP Platinum Partner can achieve these MYP Points in the following manner:

    • Attend the annual MYP conference (compulsory, unless otherwise agreed by MYP)
    50 points
    • Introduce a new Subscriber that commences an MYP subscription
    10 points
    • Annual retention of a Subscriber introduced by the MYP Platinum Partner
    10 points
    • Be a current MYP Subscriber
    10 points
    • Introduce a suitable person/organisation who commences as an MYP Partner
    10 points
  2. Partner Remuneration – Other Services Provided by MYP Platinum Partners

    MYP Platinum Partners may, if approved by Us in writing, generate additional remuneration by offering other services associated with Us. The table below specifies those services and the associated remuneration sharing arrangements.

    Item Your Share of Revenue Our Share of Revenue
    (including 3rd parties such as Business System Owners)
    Consulting fees (Process mapping, Business System design, advisory services etc) 100% N/A
    MYP module and module bundle opportunities (negotiated in large scale markets) Negotiated Negotiated
    Personal/customised training or set-up fees as approved by Us3 80% 20%
    Business System module development, module modification or report development (wholesale component only) You will charge retail fee to Subscriber; We will charge wholesale fee to You 100% of wholesale fee
  3. Commercial Relationship with Subscribers

    You (excluding Education Partners) determine who has the commercial relationship with the Subscriber and this selection is made in the subscription process. This choice will impact on billing and payment arrangements between the parties. Education Partners will always have the commercial relationship with the School Results Surveys (SRS) Subscriber.

    Where You have the direct commercial relationship with the Subscriber (i.e. where the Subscriber remits MYP fees and subscription income direct to You), You have the financial and legal responsibility for paying to Us all fees for the Subscriber relating to the development, training and use of the Products, less the amount that would be paid by Us to You as specified in this Schedule.

    Subscriber commercial relationship with… Billing to Subscriber Payment to CP/IPO
    Us We will invoice all services and subscriptions to the Subscriber We will pay all income due to You and any other relevant party by the 7th day of the month following when payment was made by the Subscriber.
    You You will invoice all services and subscriptions to the Subscriber We will invoice You on the last day of the month for Our income for that month. You agree to pay the invoice in line with the invoice terms. We will then remit any amount due to any other party.
  4. Commercial Relationship with Business System Owners

    Unless otherwise agreed in writing by Us, Business System Owners whose Business Systems were first offered for subscription on the MYPCorp Marketplace from 1 January 2015 will receive Remuneration equal to 40% of subscription revenue earned from Subscribers to the Business System owned by the Business System Owner and offered for subscription in the MYPCorp Marketplace.

  5. Payment of Remuneration

    We will pay all Remuneration due to You within ten (10) business days of the month following the date We received Clear Funds from the Subscriber.

    You will pay all prices, cheques, fees due to Us by You in accordance with the terms of trade specified on Our invoice to You.

  6. Requirements to maintain MYP Certified Trainer Status

    • attend training sessions for MYP Certified Trainers as specified by Us
    • attend the annual MYP Conference
    • maintain Product knowledge by attending 50% or more of new product release or update webinars
    • retain MYP Platinum Partner status at all times
    • comply with all MYP policies and processes as directed
    • use the MYP training system to manage and process any and all MYP Product training sessions
    • maintain an average rating of greater than 4.0 on training session feedback surveys over any 6 month period
    • provide training services on Our behalf to MYP subscribers as reasonably directed by Us at the commercial rates agreed
    • communicate, in both verbal and written form, at all times with Subscribers and their employees, consultants, contractors, suppliers professionally and in a manner that leaves Subscribers with a very positive view of Us