Terms & Conditions
DataMotive Provision of Service Agreement
This is an agreement between DataMotive and the Subscriber for the supply of Reports on the terms and conditions set out herein.
1. TERM This Agreement commences on the date it is signed.
2. SERVICES 2.1 Subject to the terms and conditions of this Agreement, DataMotive will supply to the Subscriber the Reports and Services for the Term. 2.2 DataMotive will use its best endeavours to ensure that the Subscriber’s Sales Information is held securely and is not disclosed except as permitted in accordance with this Agreement. 2.3 This services agreement covers provisions of all DataMotive services, including but not limited to, Mapping Services, Survey Services, Private Study Services, and Custom Reporting Services.
3. ABOUT REPORTS and SERVICES 3.1 Reports and Services are provided as general information only. The Subscriber must rely on its own enquiries, skill and judgement as the basis for doing or not doing anything. 3.2 Whilst DataMotive endeavours to provide accurate Reports and Services, DataMotive relies on information supplied by third parties including Other Subscribers. DataMotive does not represent or warrant that any Report: does not infringe any third party rights intellectual property rights; is reliable, accurate or complete or is fit for any purpose.
4. SUBSCRIBER SALES INFORMATION 4.1 The Subscriber will provide to DataMotive the Agreed Information in accordance with the Delivery Timetable and ensure that it is accurate, not misleading and is not otherwise unlawful. 4.2 The Subscriber acknowledges and agrees that the supply of Reports and Services is dependent upon one or more Other Subscribers supplying information to DataMotive. DataMotive will not be liable to the Subscriber for any delay or failure to supply any Report where the delay or failure is caused or contributed to by an Other Subscriber or Force Majeure. DataMotive will not be liable for error, misplacement, amendment, omission or failure to publish any Subscriber Sales Information or Report. 4.3 The Subscriber consents to the Subscriber’s Sales Information and information derived from Subscriber’s Sales Information being used in Reports and to the disclosure to Other Subscribers who will hold the same in escrow.
5. REPORT RESTRICTIONS AND LIMITATIONS 5.1 Reports are prepared on a matched Other Subscriber basis, that is :- (a) Reports supplied to the Subscriber will only contain Other Subscriber’s information that is the same or substantially similar to the Agreed Information; and (b) DataMotive will use its best endeavours to ensure that Reports supplied to Other Subscribers only contain that part of the Agreed Information that is the same or substantially similar to the information provided by that Other Subscriber. 5.2 For the avoidance of doubt, DataMotive will have no obligation to supply a Report to the Subscriber if the Agreed Information is not included in the Report as a result of the Subscriber’s failure to deliver the Agreed Information in accordance with the Delivery Timetable. 5.3 Reports are supplied on the following terms: (a) The Subscriber is granted a non exclusive license to use the Report for the Subscriber’s own internal business purposes only on the terms and conditions set out in this Agreement. (b) The Subscriber acknowledges that it has no rights to the Report other than those expressly set out in this Agreement. Without limitation, the Subscriber must not disclose a Report in whole or part to any person who is not an Other Subscriber.
6. OWNERSHIP and LICENCE 6.1 All Intellectual Property Rights in the DataMotive Materials are vested in DataMotive and there is no assignment of Intellectual Property Rights in the DataMotive Materials to the Subscriber. 6.2 DataMotive acknowledges that the Subscriber’s Sales Information is not assigned to DataMotive. 6.3 If necessary, the Subscriber hereby grants DataMotive a non exclusive, royalty free , worldwide licence to use, copy, adapt, modify and distribute the Subscriber Sales Information for the purposes of: (a) performing its obligations pursuant to this Agreement; (b) compiling, publishing and distributing Reports and Subscriber Sales Information in accordance with this Agreement; and (c) creating statistics, Information databases and compilations for use by DataMotive and third parties PROVIDED THAT DataMotive will not disclose the Subscriber’s Sales Information in any manner that identifies the Subscriber Information as that of the Subscribers.
7. FEES 7.1 The Subscriber shall pay the Fee within 7 days of the date of the invoice. For the avoidance of doubt the Fee is non refundable.
8. GOODS AND SERVICES TAX If GST is imposed on any taxable supply by a Party in connection with this Agreement and the consideration payable is not expressed to be inclusive of GST, then, subject to a valid tax invoice being issued, the Party liable to pay for the taxable supply must pay on demand an additional amount calculated by multiplying the value of the GST exclusive consideration ( without deduction or set off) by the current GST rate.
9. TERMINATION 9.1 DataMotive may terminate this Agreement in the event that the Subscriber is in breach of this Agreement and the breach is not remedied within 14 days written notice. 9.2 DataMotive or the Subscriber may terminate this Agreement on at least 30 days written notice prior to the end of the initial one year term. 9.3 On the termination or expiry of this Agreement: (a) the Fee shall not be refunded to the Subscriber. (b) the Parties will continue to comply with all obligations expressed herein to continue to apply after the expiration or termination of this Agreement.
10. DataMotive LIABILITY TO THE SUBSCRIBER 10.1 Other than as set out in this clause 10, and to the extent permitted by law, all implied and express warranties in respect of any goods or services provided by DataMotive are hereby excluded. 10.2 DataMotive will only be liable to the Subscriber: (a) where the law implies a term into this Agreement which cannot be excluded and DataMotive breaches that term. Provided that, where the breach relates to goods or services that are not of a kind ordinarily acquired for personal, domestic or household use or consumption and where it is fair and reasonable to do so DataMotive’s liability is limited, at its option, to replacing, repairing or re-supplying the relevant goods or re-supplying the relevant services; or (b) if the claim arises from or in connection with any deliberate breach of this Agreement or fraud by DataMotive but subject always to clause 10.4. 10.3 Subject to clause 10.2, and except to the extent that liability cannot be excluded, DataMotive will not be liable to the Subscriber for claims arising out of or in connection with this Agreement whether arising in contract, tort ( including negligence), indemnity, strict liability, breach of warranty or statute. 10.4 In no event will DataMotive be liable to the Subscriber for loss of use, production, profit, revenue, business, Information, contract or anticipated savings or for delay or for any financing costs or increase in operating costs or any economic loss for any indirect or consequential loss or damage. 10.5 For the purposes of this clause, the term DataMotive will mean DataMotive, its officers, employees, contractors and agents, whether individually or collectively. 10.6 This clause will survive the expiration or termination of this Agreement.
11. OTHER LEGAL MATTERS 11.1 Further Acts Each Party agrees to do all things that may be necessary or desirable to give full effect to every part of this Agreement if asked in writing by another party to do so. 11.2 Assignment (a) The Subscriber must not assign, transfer, subcontract or otherwise dispose of, in whole or in part of the Subscriber rights or obligations under this Agreement, without the prior written consent of DataMotive. (b) DataMotive may assign this Agreement on written notice to you with the prior written consent of the Subscriber. 11.3 Subcontractors DataMotive may subcontract the performance of this Agreement or any part thereof but DataMotive will remain responsible for the performance of its obligations under this Agreement despite subcontracting the performance of any part of it. 11.4 Provisions Severable If any provision of this Agreement is invalid, illegal or unenforceable in any respect the validity, legality and enforceability of the remaining provisions will not be affected and such invalid, illegal or unenforceable provision is to be severed from the relevant agreement. 11.5 Waiver Failure by any party to exercise or delay in exercising any right, power or remedy under Agreement does not prevent its exercise. A waiver must be in writing signed by the Party giving the waiver. 11.6 Governing Law This Agreement is governed by and construed in accordance with the laws of the State of Victoria, Australia and the parties irrevocably submit to the exclusive jurisdiction of the Courts in that State.
12. SPECIAL WORDS AGREEMENT means this Agreement, the Schedule and the Order; AGREED INFORMATION means the information described in Item 3 of the Schedule; OTHER SUBSCRIBER means a person who has entered into an agreement with DataMotive to supply DataMotive with information which is the same or similar to the Agreed Information for publication in Reports; DataMotive MATERIALS means any material including any DataMotive software, DataMotive Classification Codes, documents, Information and templates which are used in the course of preparing or providing the Reports; FEE means the amount shown in the Order which is in Australian Dollars and excludes GST; FORCE MAJEURE means a circumstance beyond the reasonable control of a Party which results in that Party being unable to observe or perform on time an obligation under this Agreement. DELIVERY TIME TABLE means the time table set out in Item 4 of the Schedule for the delivery by the Subscriber to DataMotive of the Agreed Information; INTELLECTUAL PROPERTY means all present and future registered and unregistered copyright, trademarks, designs and patents resulting from intellectual activity in the electronic industrial, scientific, literary or artistic fields; INTELLECTUAL PROPERTY RIGHTS means any rights in Intellectual Property; ORDER means an order for the Reports signed by the Subscriber and DataMotive; REPORT means one or more of the reports published by DataMotive and set out in the Order; SERVICES means one or more of the services published by DataMotive and set out in the Order; SUBSCRIBER means the person named in item 2 of the Schedule; SUBSCRIBER SALES INFORMATION means all information provided by the Subscriber to DataMotive pursuant to this Agreement including the Agreed Information. TERM means the period described in clause 1.