Terms and conditions
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:
- (a) this document;
- (b) your Application; and
- (c) other related documents to which you have agreed in writing (specifications, proposals and service level agreements).
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:
- (a) the amendment is reasonably necessary; or
- (b) the amendment is of mutual benefit to you and to us.
- Amendments to this document will be made by posting updated versions at www.impactdata.com.au/terms-and-conditions.html and by notifying you by email.
- The amendments are effective at the time that the email containing notice of the revision is sent to you.
- Exception: this clause does not affect changes to fees. Changes to fees are governed by clause 6 below.
- Continued use of the service after such time constitute the Customer's acceptance of the amendments.
3. OUR OBLIGATIONS
3.1 We will:
- (a) make the Services available to you during the Term; and
- (b) provide other information in relation to the Services as you may reasonably request for the purpose of using the Services.
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:
- (a) your own internet access and any other equipment or services required by you to access the Services;
- (b) your facilities to be connected and integrated with our Facilities in accordance with our directions (if any) to enable you to access the Services.
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:
- (a) by providing you with 30 days written notice; or
- (b) with immediate notice and effect in Exceptional Supplier Circumstances.
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:
- (a) you have the power and authority to enter into and perform your obligations under this document;
- (b) you have taken all necessary action to authorise the signing, delivery and performance of this document;
- (c) you will not violate any law, authorisation, ruling, consent, judgment, order or decree of any governmental agency or other body.
- (d) you will comply with all laws (including Privacy Laws, SPAM laws and EU GDPR) and all laws associated with and all reasonable directions provided by us associated with your access to and use of the Services;
- (e) you will not copy, reproduce, modify, alter, reverse assemble or reverse compile the Impact Data Intellectual Property other than provided for in this agreement;
- (f) you and your Personnel will not do anything which is of an offensive, illegal, fraudulent or defamatory nature which may bring disrepute or harm to us, our Personnel, the Services and our Facilities;
- (g) the information contained in the Application:
- (i) is true and correct; and
- (ii) does not mislead or deceive; and
- (h) you will do those things reasonably necessary (including providing us with information) to assist us in providing the Services;
- (i) if you determine that the Documentation requires amendment to comply with all laws that may affect your business, you must notify us of the required amendments to the Documentation;
- (j) you understand that the Services use multi-tenant software architecture; and
- (k) you understand that provision of the Services and the Telephone Numbers are based upon services provided by third parties and accordingly, our ability to provide the Services and the Telephone Numbers will be affected by those third parties.
10. OUR WARRANTIES
10.1 We warrant that:
- (a) we have the power and authority to enter into and perform our obligations under this document;
- (b) by entering into and complying with our obligations under this document, neither us nor our Personnel will be in breach of any agreement or undertaking with any other person.
- (c) we will comply with all laws (including Privacy Laws, SPAM Laws and EU GDPR) and all reasonable directions provided by you associated with your access to and use of the Services and Telephone Numbers;
- (d) we and our Personnel will not do anything which is offensive, illegal, fraudulent or defamatory in nature which may bring disrepute or harm to you or your Personnel;
- (e) the Services are fit for their intended purpose and are of merchantable quality;
- (f) where the EU GDPR regime applies, an individual's rights over his or her data, as it relates Impact Data products and services, apply as follows.
- (g) we will notify you as soon as possible if we become aware of any actual or potential unauthorised use of the Data or any breach or potential breach of Privacy Laws, SPAM Laws and EU GDPR. We will take immediate action to remediate any breach and mitigate its consequences and will comply with all reasonable directions from you regarding any breach or possible breach.
10.2 To the maximum extent permitted by law, we do not warrant that:
- (a) the Documentation is up-to-date at all times or contains all the necessary information required to satisfy all laws as they change from time to time;
- (b) you will have uninterrupted and fault-free access to the Services and the Telephone Numbers;
- (c) all electronic messages will be transmitted or delivered successfully or in a timely manner.
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:
- (a) if the breach relates to the provision of goods:
- (i) the provision of those goods, the replacement of the goods or the supply of equivalent goods;
- (ii) the repair of such goods;
- (iii) the payment of the cost of providing the goods replacing the goods or of acquiring equivalent goods;
- (iv) the payment of the cost of providing the goods or having the goods repaired; or
- (v) the refund of any Fee paid; and
- (b) if the breach relates to services:
- (i) the supplying of the services again;
- (ii) the payment of the cost of having the services supplied again; or
- (iii) the refund of any Fee paid.
11. INDEMNITY AND RELEASE
11.1 You release us and our Personnel from all Claims associated with:
- (a) any negligent acts or omissions of you or your Personnel in relation to your use and access to the Services;
- (b) your breach of this document.
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:
- (a) a party breaches any of its obligations under this document in circumstances where the breach is not capable of rectification;
- (b) a party breaches any of its obligations under this document, and then fails to rectify the breach within 5 Business Days of it receiving a notice from the other party identifying the breach; or
- (c) a party becomes or resolves to become subject to any form of insolvency administration, dissolution or winding-up.
12.2 We may suspend the Services and/or terminate this agreement immediately by notice in writing if you or your Personnel:
- (a) fail to pay Fee when it falls due;
- (b) breach the terms of this document;
- (c) do anything to compromise the technical integrity, operation or viability of our Services.
12.3 Either party may terminate this agreement at any time by providing 30 days written notice.
12.4 Upon termination of this agreement:
- (a) we will immediately cancel your Security Details and access to the Services and Telephone Numbers;
- (b) you will immediately return to us all information and material provided by us to you under this agreement;
- (c) upon payment of all outstanding Fees we will provide you with the Data.
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:
- (a) provide you with written notice of that as soon as practicable; and
- (b) use our best endeavours to make another comparable services available to you during the Term on the same terms.
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:
- (a) to provide the Services to you
14.2 Both we and you must:
- (a) comply with the Privacy Laws, SPAM Laws and EU GDPR; and
- (b) notify all persons from whom you collect the Data that that information will be used by us in accordance with clauses 14.1 and 14.2.
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:
- (a) acts of God, lightning strikes, earthquakes, floods, storms, explosions, fires and any other natural disasters;
- (b) acts of war, acts of public enemies, terrorism, riots, civil commotion and sabotage; and
- (c) strikes or other industrial action or disputes not involving employees, members or participants of the party seeking to rely on the Force Majeure event.
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:
- (a) inventions, discoveries and novel designs, whether or not registered or registrable as patents or designs, including developments or improvements of equipment, products, technology, processes, methods or techniques;
- (b) copyright (including future copyright) throughout the world in all literary works, artistic works, computer software, and any other works or subject matter in which copyright subsists and may in the future subsist;
- (c) trade secrets; and
- (d) trade marks. Personnel in relation to a party means the party's officers, office-holders, committee, members, employees and contractors. Privacy Laws means all applicable privacy laws including the Privacy Act 1988 (Cth) and the National Privacy Principles in Australia and the European Convention of Human Rights (Articles 8 and 10) and the Data Protection Act 1998 in the United Kingdom. Security means any enforceable obligation to secure amounts owed by you to us from time to time.
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:
- (a) words in the singular include the plural and vice versa;
- (b) words indicating any gender indicate the appropriate gender;
- (c) where a word or phrase is given a particular meaning, other parts of speech and grammatical forms of that word or phrase have corresponding meanings;
- (d) a reference to a person is to be construed as a reference to an individual, body corporate, unincorporated association, partnership, joint venture or government body;
- (e) any reference to a party includes that party's executors, trustees, administrators, successors in title and assigns;
- (f) references to any document (including this document) include references to the document as amended, consolidated, supplemented, novated or replaced and includes all Schedules and Annexures to this document;
- (g) a reference to a Statute includes a reference to or citation of all enactments amending or consolidating the Statute and to an enactment substituted for the Statute;
- (h) monetary references are references to the currency specified on the Application; and
- (i) headings are included for convenience only and do not affect interpretation of this document.