1.1 The use of "we", "us" or "our" in this document refers to Impact Data or, where appropriate, our Personnel.
1.2 The use of "you" or "your" in this document refers to the Client.
1.3 All other terms are defined and used as set out in Schedule 1.
2. THE AGREEMENT
2.1 We will provide the Services to you during the Term.
2.2 this agreement with you is governed by:
2.3 This agreement with you will come into effect when we receive your Application. In the case that any specific terms of your Application conflict with the general terms of this document then the specific terms of your Application will prevail.
2.4 Impact Data may from time to time amend this Agreement under this clause 2.4 as follows:
3. OUR OBLIGATIONS
3.1 We will:
3.2 From time to time, we may provide you with Documentation for your use.
4. SECURITY AND ACCESS
4.1 To enable you to use and/or access the Services, we will provide you with personalised Security Details.
4.2 At all times, you will be responsible for the use, supervision, management and control of the Security Details.
4.3 You will be responsible for any (authorised or unauthorised) use or access to the Services by a third party using your Security Details.
4.4 You should immediately notify us in writing if you become aware of any actual or potential unauthorised use of the Security Details.
4.5 If we become aware that the Security Details have been compromised, we may deny access until re-authorisation has been completed
4.6 We will deactivate your Security Details upon termination of this agreement.
5. YOUR USE OF THE SERVICES
5.1 You will arrange for:
5.2 You must notify us if you become aware of you being unable to access the Services.
6.1 You will pay us the Fee within 14 days of us sending a Tax Invoice.
6.2 Except where specifically stated otherwise in the Agreement, we can alter the Fee:
6.3 You agree to pay the Fee relating to your account activity. You acknowledge that anyone with access to your login details can send messages and or initiate other forms of account usage which may incur a charge detailed in this agreement.
6.4 SMS credits are transferable between Impact Data products.
7. SERVICE LEVEL AGREEMENT
7.1 The Services will be available for use 24 hours a day, 365 days of the year for 99.9% of the time, excluding scheduled maintenance and/or the documented failure of service delivery from our industry standard hosting providers.
7.2 If the Service Level described in 7.1 is not met for any calendar day period measured in Coordinated Universal Time we will provide a pro-rated credit for that period with respect to the Fee.
8. INTELLECTUAL PROPERTY
8.1 We own the Impact Data Intellectual Property.
8.2 We will use the Impact Data Intellectual Property to provide you with the Services.
8.3 You are not licensed to use the Impact Data Intellectual Property in any way other than in your use of the Services.
8.4 Despite anything else in this agreement, the Impact Data Intellectual Property remains our property in all respects regardless of any modification by you or a third party.
8.5 You must notify us as soon as is practicable if you become aware of any actual or potential unauthorised use of the Impact Data Intellectual Property.
9. YOUR WARRANTIES
9.1 You represent and warrant as at the date of this document and at all times during the Term, that:
10. OUR WARRANTIES
10.1 We warrant that:
10.2 To the maximum extent permitted by law, we do not warrant that:
10.3 Subject to clause 10.4, any condition or warranty which would otherwise be implied in this agreement is excluded.
10.4 Where legislation implies into this agreement any condition or warranty, and that legislation avoids or prohibits provisions in a contract excluding or modifying the application of or exercise of or liability under such condition or warranty, the condition or warranty shall be deemed to be included in this agreement. However, our liability for any breach of such condition or warranty will be limited, at our absolute option, to one or more of the following:
11. INDEMNITY AND RELEASE
11.1 You release us and our Personnel from all Claims associated with:
12.1 Without limiting the generality of any other clause in this document, either party may terminate this agreement immediately by notice in writing if:
12.2 We may suspend the Services and/or terminate this agreement immediately by notice in writing if you or your Personnel:
12.3 Either party may terminate this agreement at any time by providing 30 days written notice.
12.4 Upon termination of this agreement:
12.5 Any termination under this clause is without prejudice to any other rights, liabilities or obligations accrued at the date of termination.
13. VARIATION AND CANCELLATION BY US
13.1 From time to time, we may modify our Services and in that case, we use our best endeavours to ensure that such modification does not adversely affect you.
13.2 If, for any reason, we cannot make the Services available to you during the Term, we will:
13.3 We may Terminate this agreement if, in our reasonable opinion providing the Services becomes unlawful or will cause a breach of law.
14.1 You own the Data and you grant us a non-exclusive and royalty-free licence to use the Data:
14.2 Both we and you must:
14.3 We will destroy the Data 45 days after termination of this agreement.
15. CONFIDENTIAL INFORMATION
15.1 Either party must not, without the prior written approval of the other party, disclose the other party's Confidential Information.
15.2 A party will not be in breach of clause 15.1 in circumstances where it is legally compelled to disclose the other party's Confidential Information.
15.3 Each party must take all reasonable steps to ensure that its Personnel do not make public or disclose the other party's Confidential Information.
15.4 Notwithstanding any other provision of this clause, either party may disclose the terms of this agreement (other than Confidential Information of a technical nature) to related companies, solicitors, auditors, insurers or accountants, and will ensure that every person to whom that disclosure is made uses that information solely for the purposes of advising or reporting directly to that party.
15.5 This clause will survive the termination of this agreement.
16. FORCE MAJEURE
16.1 Neither party will be liable for any delay or failure to perform its obligations pursuant to this document if such delay is due to Force Majeure.
16.2 If our delay or failure to perform our obligations due to Force Majeure exceeds a reasonable period as we determine, we may immediately terminate the document on providing written notice to you.
17.1 All amounts stated in the Application are exclusive of GST/VAT unless otherwise stated.
17.2 If GST/VAT is payable on a Taxable Supply made or required to be made under this document by us, you must pay the amount of the GST/VAT to us as an additional amount when we provide a Tax Invoice to you for the relevant Taxable Supply.
18.1 All notices given under this document must be in writing and may be delivered in person or by mail or sent by email to their Address. You may change your particulars for service by notice in writing to us.
18.2 A notice sent by post will be deemed received three days after posting.
18.3 A notice sent by email will be deemed received when the email notice is sent without failure notice from the receiving email service provider.
19.1 Governing Law This document will be construed in accordance with the laws in force in Victoria and the parties submit to the jurisdiction of the Courts of Victoria.
19.2 Stamp Duty and Legal Fees Each party will bear its own legal and other costs and expenses relating to this document.
19.3 Joint and Several An obligation of two or more persons under this document binds them jointly and severally and every expressed or implied agreement or undertaking by which two or more persons derive any benefit in terms of this document will take effect for the benefit of those persons jointly and severally.
19.4 Severability If any provision in this document is invalid or unenforceable this document will remain otherwise in full force apart from such provision, which will be deemed deleted.
19.5 Waiver The failure of a party to this document to enforce a provision or the granting of any time or indulgence will not be construed as a waiver of the provision nor of a waiver of the right of the party at a later time to enforce the provision.
19.6 Neither party to this Agreement may assign their rights or obligations under this document without the prior written consent of the other party which consent may be given or withheld or given on conditions in their absolute discretion.
SCHEDULE 1 DICTIONARY
In this document:
Address means your address and our address as set out in the Application.
Application means the written application or on-line purchase order prepared by you and submitted to us for your use of our Services.
Business Days means a day when the banks are open for business in Melbourne, Victoria.
Claim means in relation to a person, a claim, demand, remedy, suit, injury, damage, loss, cost, liability, action, proceeding, right of action, claim for compensation or reimbursement or liability incurred by or to be made or recovered by or against the person, however arising and whether ascertained or unascertained, or immediate, future or contingent.
Client means the person or entity set out in the Application. Consumer means your customer.
Confidential Information means all business secrets, personal information, behavioral information, financial information, work materials resulting from the services, and all other information, data and documents of or relating to the Client and its operations.
Data means all personal information collected by you from individuals including your customers, potential customers, employees and contractors.
Documentation means any standard documentation provided by us for use in your business including privacy statements and terms and conditions.
EU GDPR means the European Union General Data Protection Regulation which came into force on 25 May 2018.
Exceptional Supplier Circumstances means when we receive less than 30 days notice of a change to our cost of goods required to deliver the Services as may be the case in relation to, but not limited to: SMS; MMS; email; and Bandwidth usage.
Facilities means all our software, hardware and other facilities associated with provision of the Services.
Fee means the fee set out in the Application and any related or subsequent correspondence.
Force Majeure means circumstances beyond the reasonable control of a party which results in that party being unable to perform an obligation of this document on time or at all, and includes but is not limited to:
GST/VAT means one of GST or VAT as referred to in the Application and which has the same meaning as in the Tax Act.
Impact Data means Impact Data Pty Ltd ACN 095 385 354 and Impact Data UK Ltd (Company Number 6303441).
Impact Data Intellectual Property means any Intellectual Property Rights owned or used by us under licence including the registered and unregistered trade marks of us including all names, logos, graphics, domain names and URLs of us and any variant of them.
Intellectual property rights includes:
Security Details means a log-in identification and password to enable you to access the Services.
Services means the services offered by us to you from time to time and as set out in the Application or Service Level Agreement.
SPAM Laws means all applicable laws relating to the sending of electronic communications. including the Spam Act 2003 (Cth) in Australia and the Data Protection Act 1998 in the United Kingdom.
Tax Act means the A New Tax System (Goods and Services Tax) Act 1999 in relation to GST and Value Added Tax Act 1994 in relation to VAT.
Tax Invoice has the same meaning as in the Tax Act.
Taxable Supply has the same meaning as in the Tax Act.
Telephone Numbers means the telephone number(s) which we notify you of from time to time.
Term means the date of the Application until this agreement is terminated.
Terms and Conditions means these terms and conditions.
Construction In this document: