Data Scouts Terms and Conditions

1. STATEMENT OF WORK

These terms will apply to all the Client’s dealings with Data Scouts, including being incorporated in all agreements, quotations or orders under which Data Scouts is to provide services to the Client (each a Statement of Work) together with any additional terms included in such Statement of Work (provided such additional terms are recorded in writing). In the event of any inconsistency between these terms and conditions and any Statement of Work the clauses of these terms and conditions will prevail to the extent of such inconsistency, except that any “Special Conditions” (being terms set out and described as such in a Statement of Work) will prevail over the other terms of this agreement to the extent of any inconsistency.

2. SERVICES

2.1 Services
In consideration for the payment of the Fees set out in a Statement of Work, Data Scouts will provide the Client with the Services set out in that Statement of Work during the Term of that Statement of Work.

2.2 Hosted Data
The extent Data Scouts hosts Client Data on servers controlled by Data Scouts (Hosted Data), the following terms apply:
(a) (hosting location) Data Scouts will ensure that it only uses storage servers located inside Australia.
(b) (security standards) Data Scouts will use its best efforts to establish and maintain safety and security procedures and safeguards against the unauthorised use, destruction, loss or alteration of Hosted Data.
(c) (security breach) Data Scouts will notify the Client promptly after Data Scouts learns of any potential, actual or suspected loss, misappropriation or unauthorised access to, or disclosure or use of Hosted Data (Security Breach). Data Scouts will promptly investigate each potential, actual or suspected Security Breach and assist the Client and its Personnel in connection with any investigation that the Client may desire to conduct with respect to the Security Breach.
(d) (liability for breach) While Data Scouts will use its best efforts to ensure that Hosted Data is stored securely, Data Scouts does not accept responsibility or liability for any unauthorised use, destruction, loss, damage or alteration to the Hosted Data, including due to hacking, malware, ransomware, viruses, malicious computer code or other forms of interference.
(e) (backups & disaster recovery) Data Scouts will use its best efforts to create scheduled backups of Hosted Data stored by Data Scouts. In the event that Hosted Data is lost due to a system failure (e.g. a database or web server crash), Data Scouts will attempt to restore the Hosted Data from the latest available backup, but cannot guarantee that this backup will be free from errors or defects.(a)         
(d)

3. CLIENT OBLIGATIONS

3.1 Provide Information
The Client must provide Data Scouts with all documentation, information and assistance reasonably required by Data Scouts to perform the Services.

3.2 Access
The Client agrees to provide Data Scouts with access to:
(a) the Client’s premises and Personnel, to the extent required to perform the Services;
(b) the Client’s website (but only where Data Scouts is providing Services that involve making updates or changes to the Client’s website); and
(c) any other third party or other accounts used by the Client (including login details) as reasonably required by Data Scouts to perform the Services.

3.3 Compliance with Laws
The Client warrants that:
(a) Data Scouts’ use of the Client’s Existing Materials; and
(b) the Client’s receipt or use of the Services:
will not breach any applicable laws, rules and regulations, infringe the Intellectual Property Rights or other rights of any third party, or breach any duty of confidentiality.

4. PAYMENTS

4.1 Fees
The must pay the Fees set out in a Statement of Work according to the Payment Terms set out in that Statement of Work.

4.2 Time for Payment
Unless otherwise agreed in a Statement of Work:
(a) if Data Scouts issues an invoice to the Client, payment must be made by the time(s) specified on such invoice; and
(b) in all other circumstances, the Client must pay for all goods and services within 2 weeks of receiving an invoice for amounts payable.

4.3 Suspension of Services
Data Scouts reserves the right to suspend all or part of the Services indefinitely where the Client fails to pay the Fees in the amounts and times specified in this clause 4.

4.4 Expenses
Unless otherwise agreed in writing:
(a) the Client will bear all travel, accommodation, office stationery, computer storage, media and related expenses reasonably incurred by Data Scouts in connection with a Statement of Work; and
(b) any third-party costs incurred by Data Scouts in the course of performing the Services may be billed to the Client, unless specifically otherwise agreed in the Statement of Work.

4.5 GST
Unless otherwise indicated, amounts stated in a Statement of Work do not include GST. In relation to any GST payable for a taxable supply by Data Scouts, the Client must pay the GST subject to Data Scouts providing a tax invoice.

5. CHANGES

(a) The Client must pay additional service fees for changes to Services requested by the Client which are outside the scope set out in the relevant Statement of Work (Changes).
(b) Unless otherwise agreed in writing, Data Scouts may at its discretion extend or modify any delivery schedule or deadlines for the Services as may be reasonably required by such Changes.

6. INTELLECTUAL PROPERTY

6.1 New Material
Intellectual Property Rights in New Material are immediately assigned to and vest in Data Scouts as those rights are created.

6.2 Existing Material
Each party retains ownership of Intellectual Property Rights in its Existing Material and nothing in this agreement transfers ownership or assigns any Intellectual Property Rights in its Existing Material of a party to the other party.

6.3 Licence
(a) Data Scouts grants to the Client a perpetual, revocable, non-transferable, worldwide and royalty-free licence to use Data Scouts’ Intellectual Property Rights in its ExistingMaterial and New Material to extent required for the Client to receive the Services.
(b) The client grants to Data Scouts (and its subcontractors, employees and or agents) a non-exclusive, royalty free, non-transferable, worldwide and irrevocable licence to use its Existing Materials to the extent reasonably required to perform any services.

6.4 Moral Rights
To the extent that the Client has Moral Rights in the New Material or the Client’s Existing Material, the Client gives a Moral Rights Consent.  To the extent that the Client’s Personnel or any other third party has Moral Rights in the New Material or the Client’s Existing Material, the Client will obtain a Moral Rights Consent from that person.

7. WARRANTIES

(a) To the maximum extent permitted by applicable law, all express or implied representations and warranties (whether relating to fitness for purpose or performance, or otherwise) not expressly stated in this agreement or a Statement of Work are excluded.
(b) Where any law (including the Competition and Consumer Act 2010 (Cth)) implies a condition, warranty or guarantee which may not lawfully be excluded, then, to the maximum extent permitted by applicable law, Data Scouts’ liability for breach of that non-excludable condition, warranty or guarantee will, at Data Scouts’ option, be limited to:
(i) in the case of goods, their replacement or the supply of equivalent goods or their repair; and
(ii) in the case of services, the supply of the services again, or the payment of the cost of having them supplied again.

8. CONFIDENTIALITY

8.1 Confidential Information
(a) The parties undertake that they and their respective Personnel will not, without the prior written consent of the other party:
(i) disclose the Confidential Information of the other party to any person; or
(ii) use the Confidential Information of the other party for their own or a third party’s benefit.
(b) Each party must take all reasonable steps to ensure that the Confidential Information of the other party is only disclosed to such of its Personnel as require that information in order to enable the performance of this agreement.
(c) In the event that either party is requested or becomes legally compelled to disclose any of the other party’s Confidential Information, that party will (subject to any regulatory restrictions) provide the other party with prompt notice so that the other party may seek such protective order or other appropriate remedy as it thinks appropriate.

9. PRIVACY

Data Scouts must ensure that when it collects, uses, discloses, transfers or otherwise handles Personal Information in the course of performing the Services or its other obligations under this agreement, it at all times complies with Privacy Laws.

10. LIMITATION OF LIABILITY

Data Scouts’ liability for all claims in aggregate (whether those claims be for breach of contract, negligence or otherwise, and whether those claims be only for economic loss, or for personal injury or other damage) arising under or in connection with this agreement or a Statement of Work:
(a) is totally excluded, to the extent it concerns liability for indirect, special and consequential damages, and damages (whether direct or indirect) reflecting loss of revenue, loss of profits and loss of goodwill; and
(b) is limited, insofar as concerns other liability, to the total money paid to Data Scouts by the Client in connection with this agreement and all Statements of Work in the six months prior to the event giving rise to the relevant liability occurred (or, where there are multiple events, the date of the first such event).

11. DISPUTE RESOLUTION

(a) The parties must, without delay and in good faith, attempt to resolve any dispute which arises out of or in connection with this agreement prior to commencing any proceedings.
(b) If a party requires resolution of a dispute it must immediately submit full details of the dispute to the chief executive officer of the other party.
(c) The parties acknowledge and agree that compliance with this clause is a condition precedent to any entitlement to claim relief or remedy, whether by way of proceedings in a court of law or otherwise in respect of such disputes, except:
(i) in the case of applications for urgent interlocutory relief; or
(ii) a breach by another party of this clause.

12. TERMINATION

12.1 Termination by Data Scouts
Data Scouts may terminate this agreement or any Statement of Work in whole or in part immediately by written notice to the Client if the Client is in breach of any term of this agreement or the relevant Statement of Work.

12.2 Termination by the Client
The Client may terminate this agreement or any Statement of Work in whole or in part by written notice to Data Scouts if:
(a) if Data Scouts has committed a material breach of this agreement or the relevant Statement of Work and has failed to remedy the breach within 30 days after receiving written notice from the Client; or
(b) if Data Scouts consents to such termination, subject to the Client’s fulfillment of any pre-conditions to such consent (e.g. payment of a pro-rata portion of the agreed fees).

12.3 Effect of Termination
Upon termination of this agreement, the Client must promptly pay Data Scouts’ fees in relation to work already performed, or otherwise payable to Data Scouts, as at the date of termination.

12.4 Survival
Any provision of this agreement which, by its nature, would reasonably be expected to apply after the termination, shall survive and be enforceable after such termination, including without limitation clauses 3, 4, 8, 10, 11, 14 and 15.

13. FORCE MAJEURE

(a) If a party becomes unable, wholly or in part, to carry out an obligation under this agreement or a Statement of Work (other than an obligation to pay money) due to a Force Majeure Event, that party must give to the other party prompt written notice of:
(i) reasonable details of the Force Majeure Event; and
(ii) so far as is known, the probable extent to which that party will be unable to perform or be delayed in performing its obligation.
(b) Subject to compliance with clause (a), the relevant obligation will be suspended during the Force Majeure Event to the extent that it is affected by the Force Majeure Event.
(c) The affected party must use its best endeavours to overcome or remove the Force Majeure Event as quickly as possible.

14. NOTICES

14.1 Form of Notice
A notice or other communication to a party under this agreement must be:
(a) in writing and in English; and
(b) addressed to that party to:
(i) the postal address of that party; or
(ii) the email address of that party that has been regularly used by the parties to correspond during the term of this agreement (unless such email address is known to be inactive by the party giving notice).

14.2 How Notice Must be Given
A notice must be given by one of the methods set out in the table below and is regarded as given and received at the time set out below.

Method - By hand
When Notice is regarded as given and received - On delivery

Method - By prepaid post in the same country
When Notice is regarded as given and received - On the third business day after the date of posting

Method - By prepaid post in another country
When Notice is regarded as given and received - On the fifth business day  after the date of posting by airmail

Method - By email to the nominated email address
When Notice is regarded as given and received - Unless the party sending the email knows or reasonably ought to suspect that the email and the attached communication were not delivered to the addressee's domain specified in the email address, 24 hours after the email was sent.

15. GENERAL

(a) (Governing law) This agreement is governed by the law applying in New South Wales.
(b) (Jurisdiction) Each party irrevocably submits to the exclusive jurisdiction of the courts of New South Wales and courts of appeal from them in respect of any proceedings arising out of or in connection with this agreement. Each party irrevocably waives any objection to the venue of any legal process on the basis that the process has been brought in an inconvenient forum.
(c) (Amendments) This agreement may only be amended by Data Scouts in accordance with the agreement.
(d) (Waiver) No party to this agreement may rely on the words or conduct of any other party as a waiver of any right unless the waiver is in writing and signed by the party granting the waiver.
(e) (Further acts) Each party must promptly do all further acts and execute and deliver all further documents required by law or reasonably requested by another party to give effect to this agreement.
(f) (Assignment) A party cannot assign, novate or otherwise transfer any of its rights or obligations under this agreement without the prior written consent of the other party.
(g) (EntireAgreement) This agreement embody the entire agreement between the parties and supersede any prior negotiation, conduct, arrangement, understanding or agreement, express or implied, in relation to the subject matter of the agreement.
(h) (Interpretation) In this agreement, the following rules of interpretation apply:
(i) (singular and plural) words in the singular includes the plural (and vice versa);
(ii) (gender) words indicating a gender includes the corresponding words of any other gender;
(iii) (defined terms) if a word or phrase is given a defined meaning, any other part of speech or grammatical form of that word or phrase has a corresponding meaning;
(iv) (person) a reference to “person” or “you” includes an individual, the estate of an individual, a corporation, an authority, an association, consortium or joint venture (whether incorporated or unincorporated), a partnership, a trust and any other entity;
(v) (party) a reference to a party includes that party's executors, administrators, successors and permitted assigns, including persons taking by way of novation and, in the case of a trustee, includes any substituted or additional trustee;
(vi) (this agreement) a reference to a party, clause, paragraph, schedule, exhibit, attachment or annexure is a reference to a party, clause, paragraph, schedule, exhibit, attachment or annexure to or of this agreement, and a reference to this agreement includes all schedules, exhibits, attachments and annexures to it;
(vii) (document) a reference to a document (including this agreement)is to that document as varied, novated, ratified or replaced from time to time;
(viii) (headings) headings and words in bold type are for convenience only and do not affect interpretation;
(ix) (includes) the word “includes” and similar words in any form is not a word of limitation; and
(x) (adverse interpretation) no provision of this agreement will be interpreted adversely to a party because that party was responsible for the preparation of this agreement or that provision.

16. DEFINITIONS

In this agreement the following definitions apply:

Term: Client
Definition: means the Client set out in the Statement of Work.

Term: Client Data
Definition: means any Materials supplied by the Client to Data Scouts under or in connection with this agreement or a Statement of Work, including any Intellectual Property Rights attaching to those Materials.

Term: Hosted Data
Definition: has the meaning given to it in clause 2.2.

Term: Confidential Information
Definition: means information of or provided by a party that is by its nature confidential information, is designated by that party as confidential, or that the other party knows or ought to know is confidential, but does not include information which is or becomes, without a breach of confidentiality, public knowledge.

Term: Existing Material
Definition: in respect of a party means all Materials, other than New Material, owned or licensed by the relevant party and, in the case of the Client, Client Data.

Term: Fees
Definition: means the amounts payable for the Services as set out in a Statement of Work.

Term: Force Majeure Event
Definition: means an event that is beyond the reasonable control of a party, materially affects the performance of any of its obligations under this agreement, and could not reasonably have been foreseen or provided against.

Term: Hosting Services
Definition: means Services that involve hosting Hosted Data for the Client.

Term: Intellectual Property Rights
Definition: means all copyright, trade mark, design, patent, semiconductor and circuit layout rights, trade, business, Data Scouts and domain names, confidential and other proprietary rights, and any other rights to registration of such rights whether created before or after the date of this agreement both in Australia and throughout the world.

Term: Material
Definition: means tangible and intangible information, documents, reports, software (including source and object code), inventions, data and other materials in any media whatsoever.

Term: Moral Rights
Definition: means the moral rights granted under the Copyright Act 1968 (Cth), and any similar rights existing under foreign laws.

Term: Moral Rights Consent
Definition: means a waiver of Moral Rights to the extent permitted by law and an unconditional consent to any act or omission in relation to the New Material or Existing Material by or on behalf of Data Scouts, its Personnel, any licensee or its successors or assigns.

Term: New Material
Definition: means Material that is created, written, developed or otherwise brought into existence by or on behalf of Data Scouts in the course of providing Services.

Term: Payment Terms
Definition:
have the meaning set out in a Statement of Work

Term:
Personal Information
Definition:
has the meaning given in the Privacy Laws.

Term:
Personnel
Definition: in respect of a party, means that party’s officers, employees, contractors (including subcontractors) and agents.

Term: Privacy Laws
Definition: means the Privacy Act 1988 (Cth) as amended from time to time and includes the Australian Privacy Principles in Schedule 1 of that Act, and the General Data Protection Regulation (EU) 216/679.  

Term: Security Breach
Definition: has the meaning given to it in clause 2.2(c).

Term: Services
Definition: means the services to be provided by Data Scouts as set out in a Statement of Work.

Term: Statement of Work
Definition: has the meaning given to it in clause 1.

Term: Term
Definition: in respect of a Statement of Work, means the term set out in that Statement of Work.

Term: Data Scouts
Definition: means DATA SCOUTS PTY LTD - ACN 600 882 826