1. AGREEMENT TO USE HOSTED SERVICES
(a) VizDynamics Pty Ltd, ABN 49 153 229 737, Level 39, 385 Bourke Street, Melbourne VIC 3000 is pleased to provide the Subscriber with access to the Hosted Services on these terms and conditions.
(b) By accessing or using the Hosted Services the Subscriber agrees to be bound by these terms and conditions of use as amended from time to time.
This Agreement commences on the date the Hosted Services are first accessed and will continue until it expires or terminates in accordance with clause 9.
2. HOSTED SERVICES
2.1 Supply of Hosted Services
(a) This Agreement applies to the supply by VizDynamics to the Subscriber of the Hosted Services.
(b) The supply of the Hosted Services are for:
(i) the Subscribers own use; and
(ii) may be resupplied for access and use by Clients to generate, view and download Campaign Data.
2.2 About the Hosted Services
(a) The Subscriber acknowledges that:
(i) the Hosted Services may include functionality that modifies, processes or enhances Campaign Data including converting, translating or validating Campaign Data; and
(ii) the Subscriber and Client are solely responsible for inspecting all Campaign Data to ensure that any modified, processed or enhanced Campaign Data is accurate and/or complete.
(b) VizDynamics may from time to time, modify, enhance or upgrade any Hosted Services. For the avoidance of doubt, VizDynamics may cease to provide any Hosted Services (or part thereof) on 30 days notice or such shorter period as is required by VizDynamics.
3. CLIENT MANAGEMENT
3.1 Subscriber’s Responsibility
(a) The Subscriber is solely responsible for:
(i) entering into relevant agreements with Clients;
(ii) responding to or handling Client enquiries or difficulties; and
(iii) performing initial diagnosis of any Client difficulties;
in respect of or in connection with Clients generating, viewing and downloading Campaign Data.
(b) The Subscriber acknowledges and agrees that it enters into the Agreement on its own behalf and not as VizDynamics’s agent and must ensure that VizDynamics does not bear any liability to any Client.
(a) The Subscriber will not:
(i) when dealing with any Client or any other person, attribute blame to VizDynamics for any failure or problem with the Hosted Services unless not doing so would be unlawful;or
(ii) otherwise disparage VizDynamics in relation to the services provided pursuant to this Agreement.
4. LICENCE TO USE HOSTED SERVICES
Subject to the terms of this Agreement, VizDynamics grants to the Subscriber a non-exclusive license for the Term to:
(a) access and use the Hosted Services; and
(b) sub-licence Clients to generate, view and download Campaign Data;
in accordance with the terms and conditions of this Agreement.
4.2 Hosted Services Obligations
(a) The Subscriber will:
(i) supply, or procure the supply of Initial Campaign Data to VizDynamics in the form reasonably required by VizDynamics;
(ii) maintain secrecy and confidentiality of all user ID and password information required by the Subscriber to access the Hosted Services and immediately change the Subscriber’s password if the Subscriber’s password has been lost, stolen or compromised in any way. The Subscriber is responsible for all activities and charges under their user ID or password;
(iii) implement and maintain security procedures to ensure that the Hosted Services are protected at all times from unauthorised access; and
(iv) assess the accuracy, reliability and completeness of any information received pursuant to its use of the Hosted Services.
(b) Except as set out in this Agreement, the Subscriber must not:
(i) do anything which threatens the security, access or performance of the Hosted Services or otherwise impairs the lawful use of the Hosted Services by any person;
(ii) provide to any person other than an employee or contractor of the Subscriber any user ID or password necessary to access and use the Hosted Services; or
(iii) introduce or use any device software or routine that interferes or attempts to interfere with the operation of the Hosted Services.
(c) The Subscriber will use its best endeavours to ensure that any agreement with a Client to access and use the Hosted Services is not inconsistent with this Agreement and includes the provisions of clause 4.2 (a) and (b).
(a) Initial Campaign Data and Campaign Data will be stored by VizDynamics for the lesser of the Term and 3 years.
(b) The Subscriber acknowledges that either it or a Client requires a current license to the Hosted Services to access stored Initial Campaign Data or Campaign Data.
(a) The Subscriber acknowledges and agrees that:
(i) it (and each Client) must supply, at its sole cost and expense, all Initial Campaign Data ( including entering into any API access agreement with any Campaign Data Provider);
(ii) it (and each Client) must supply, at its sole cost and expense, all hardware and software necessary to access and use the Hosted Services;
(iii) it must at its sole cost and expense maintain compatibility between the Campaign Data Provider’s Systems and the Hosted Services; and
(iv) any failure to maintain compatibility between the Campaign Data Provider’s Systems and the Hosted Services may adversely affect the Subscriber or Clients access and use of the Hosted Services.
5. HOSTED SERVICES
5.1 Connections to Hosted Services
(a) The Subscriber must nominate in writing each Client who will access the Hosted Services.
(b) The Subscriber acknowledges and agrees that VizDynamics is not responsible for:
(i) hardware and telecommunications equipment, including but not limited to personal computers, network equipment, cabling required by the Subscriber or any Clients; or
(ii) facilities required to connect the Subscriber or the Client to the Internet or any other telecommunication system.
5.2 Disconnections from Hosted Services
(a) VizDynamics will upon written notice from the Subscriber disconnect any Client from the Hosted Services.
(b) VizDynamics may, without notice or liability, suspend, restrict or limit access to the Hosted Services by the Subscriber or any Client in the event of any action or event which, in VizDynamics’s absolute opinion, threatens the security, access or performance of the Hosted Services. VizDynamics will provide the Subscriber with notice of any suspension, restriction or limitation as soon as practicable after the event.
5.3 Availability of Hosted Services
VizDynamics does not and cannot provide any warranty that the internet, any web site or any telecommunications infrastructure required to access or use the Hosted Services will be continuously accessible. For the avoidance of doubt VizDynamics will not be liable in the event that:
(a) The internet, any web site or any telecommunications infrastructure (including the Hosted Services) is unavailable (in whole or part) for any reason whatsoever.
(b) Any Data or file transmitted by or to the Subscriber using any Hosted Services is not received in a timely manner or at all.
6. MANAGEMENT OF HOSTED SERVICES
(a) The Subscriber acknowledges and agrees that:
(i) the Hosted Services contains functionality that enables the Subscriber to generate information, reports and statistics based on the use of the Hosted Services by Clients.
(ii) VizDynamics does not warrant the accuracy or completeness of any information, report or statistic generated by the Hosted Services.
(b) The Subscriber hereby releases and indemnifies VizDynamics, its servants and agents against all actions, claims and demands (including the cost of defending or setting any actions, claims and demands ) arising out of or in respect of:
(i) the Subscriber’s access or use of the Hosted Services or Campaign Data including information or data relating to any Client; or
(ii) any Client’s use of the Hosted Services or Campaign Data.
7. INTELLECTUAL PROPERTY
7.1 Ownership of Hosted Services
(a) Subject to clause 7.2, all Intellectual Property Rights in any VizDynamics Data and Hosted Services are vested in VizDynamics as and when such rights are brought into existence and are agreed to be the property of VizDynamics and to the extent necessary are hereby assigned to VizDynamics. The Subscriber will do all things necessary to give effect to this clause.
(b) Subscriber acknowledges and agrees that:
(i) the VizDynamics Know How and Background IP;
(ii) all Intellectual Property Rights that may subsist from time to time in any improvements made to the Hosted Services or VizDynamics Data;
shall be and remain the sole property of VizDynamics.
7.2 Ownership of Campaign Data
(a) Campaign Data made available to VizDynamics pursuant to this Agreement will remain the property of the Subscriber or Client.
(b) VizDynamics will not:
(i) lease, sell, assign, sub-license, lend, market, transfer or otherwise dispose of any Campaign Data without the Subscriber’s prior written consent; or
(ii) knowingly do, or authorise or permit any other person to do, any act which would or might invalidate, adversely affect or be inconsistent with any Intellectual Property Rights of any person in any Campaign Data.
7.3 Use of Campaign Data and Intellectual Property Rights
(a) The Subscriber hereby grants to VizDynamics (or will procure the grant by the Client) an irrevocable, non exclusive, non transferable licence to use the Initial Campaign Data and Campaign Data for the purposes of this Agreement.
(b) The Subscriber hereby grants VizDynamics (or will procure the grant by the Client) to use, copy, adapt, modify, distribute and sub license any information and data relating to the use of the Hosted Services, including any Campaign Data, for the purposes of:
(i) providing the Hosted Services; and
(ii) creating industry bench marking and best practice statistics without disclosing the source of the data.
(a) The Subscriber acknowledges that:
(i) the Hosted Services is supplied in “Beta Form” (as this term is commonly understood) and many not be Defect free;
(ii) any information, alerts, reports, dashboards or Data generated by the Subscriber or Client in the course of using the Hosted Services should not be relied upon as the sole basis upon which the Subscriber or any Client does or does not do anything.
8.2 Excluded Warranties
Other than as set out in this clause 8, and to the extent permitted by law, all implied and express warranties in respect of any goods or services provided by a party are hereby excluded.
8.3 Included Warranties
VizDynamics warrants to the best of its knowledge and belief having made all reasonable enquires that the Hosted Services will:
(a) not infringe the Intellectual Property Rights of any person; and
(b) be free from any Virus, Trojan horse, worm or other software routine designed to permit unauthorised access to any software or disable any software or data.
(a) Other than as set out in this clause, and to the extent permitted by law, all implied and express warranties in respect of any goods or services provided by VizDynamics are hereby excluded.
(b) VizDynamics will only be liable to the Subscriber:
(i) If the law implies a term into this Agreement which cannot be excluded and VizDynamics breaches that term. However, 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 VizDynamics liability is limited, at its option, to replacing, repairing, or re-supplying the relevant goods, or re-supplying the relevant services.
(ii) If the claim arises from or in connection with any deliberate breach of this Agreement or fraud by VizDynamics but subject always to clause 8.4(d).
(c) Subject to clause 8.4(b), and except to the extent that liability cannot be excluded, VizDynamics will not be liable to the Subscriber for claims arising out of or in connection with this Agreement whether arising in contract, tort (negligence), indemnity, strict liability, breach of warranty or statute.
(d) In no event will a party be liable to the other party for loss of use, production, profit, revenue, business, data, 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.
(e) For the purposes of this clause 8, the term party will mean severally VizDynamics and the Subscriber and their officers, employees, contractors and agents, whether individually or collectively.
(f) This clause 8 will survive the expiration or termination of this Agreement.
9. SUSPENSION AND TERMINATION
VizDynamics may suspend the performance of any obligation under this Agreement or any right of the Subscriber under this Agreement, on such terms as it deems fit, if in VizDynamics’s reasonable opinion a Default Event has or is likely to occur;
(a) Without prejudice to any other rights it may have, a party may terminate this Agreement by giving notice in writing to the other party (“Defaulting party”) if the Defaulting party commits a material breach of this Agreement and the Defaulting party does not rectify such breach within 5 Business Days of being given notice of the same;
(b) This Agreement will automatically terminate if any agreement between VizDynamics and Microsoft Pty Ltd in relation to the subject matter of this Agreement is terminated for any reason or expires.
9.3 Consequences of Termination
(a) On the termination or expiry of this Agreement:
(i) VizDynamics will remove all Campaign Data from the Hosted Services immediate online storage (such data still remaining in VizDynamics’ backup storage as part of the standard operation of its systems for 3 years);
(ii) the Subscriber and Clients will cease to have access to the Hosted Services; and
(iii) the parties will continue to comply with all obligations expressed herein to continue to apply after the expiration or termination of this Agreement.
(b) Termination of this Agreement will not prejudice any accrued rights or liabilities of a party.
10. CONFIDENTIALITY AND PRIVACY
(a) Each party acknowledges that it may obtain Confidential Information of the other party and agrees:
(i) that it has taken all measures necessary to preserve the confidential nature of the Confidential Information of the other party;
(ii) it will only use the Confidential Information of the other party strictly for the purpose for which it was provided; and
(iii) that it has not and will not, without the prior written consent of the other party, disclose any of the Confidential Information of the other party to any person,
(b) A party will not be in breach of sub-clause 10.1(a) in circumstances where it is legally compelled to disclose the other party’s Confidential Information.
(c) Each party shall take all reasonable steps to ensure that its employees, and agents, and any sub-contractors engaged for the purposes of this Agreement, are aware of and comply with the obligations of this clause and do not make public or disclose the other party’s Confidential Information.
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 its Related Bodies Corporate, solicitors, auditors, insurers or accountants, and shall ensure that every person to whom that disclosure is made uses that information solely for the purposes of advising or reporting to that party.
In performing this Agreement, each party will:
(a) use personally identifiable information only for the purposes it was provided for and any other purpose permitted by law; and
(b) comply with all applicable laws in relation to privacy.
This clause shall survive the termination of this Agreement.
11.1 Relationship between the Parties
Nothing contained in this Agreement constitutes the relationship of agency or partnership between the parties and it is the express intention of the parties that such relationships are denied.
11.2 Non Exclusivity
Nothing in this Agreement is intended to prohibit or otherwise restrict either party from entering into similar agreements with third parties.
11.3 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 this Agreement.
11.4 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 jurisdiction of the courts of that State.
The Subscriber may not assign, transfer or otherwise dispose of, in whole or in part of their rights or obligations under this Agreement, without the prior written consent of VizDynamics. VizDynamics may assign this Agreement on written notice to the Subscriber.
11.6 Entire Agreement
This Agreement sets out the entire agreement and understanding between the parties with respect to the subject matter of this Agreement and supersedes all prior agreements, understandings and representations.
12. DEFINITIONS AND INTERPRETATION
In this Agreement:
(a) “API” means a particular set of rules that software programs can follow to communicate with the Hosted Services, or which the Hosted Services can follow to communicate with other software programs, and serves as an interface between the Hosted Services and other systems. These rules include at a minimum authentication details, protocol specifications and one or more API endpoints;
(b) “CLIENT” means any person or business:
(i) that the Subscriber authorizes to access and use the Hosted Services; or
(ii) that owns or controls Initial Campaign Data which the Subscriber has made available to VizDynamics for the provision of the Hosted Services
(c) “CAMPAIGN DATA” means all Data accessed by way of the Hosted Service that is:
(i) derived directly from Initial Campaign Data or previously derived Campaign Data;
(ii) derived from the Result Sets of Initial Campaign Data or previously derived Campaign Data;
(d) “CAMPAIGN DATA PROVIDER” means a company or individual that supplies Initial Campaign Data to VizDynamics other than the Licensee or Client;
(e) “CONSEQUENTIAL LOSS” means any loss, not arising naturally and according to the usual course of things from the relevant breach, whether or not such loss may reasonably be supposed to have been in the contemplation of both parties, at the time they made the contract, as the probable cause of the relevant breach;
(f) “CONFIDENTIAL INFORMATION” means:
(i) the terms and conditions of this Agreement;
(ii) all Initial Campaign Data;
(iii) all Campaign Data; and
(iv) all trade secrets, ideas, concepts, know how, knowledge and any other information whether in writing or otherwise, relating to any of that party’s products, services, systems, affairs, businesses, strategies, customers or disclosed to the other party by that party or otherwise obtained by the other party, in contemplation of, or in connection with this Agreement,
but excluding any information which:
(v) is available in the public domain otherwise as a result of a breach of confidence by any party;
(vi) is lawfully received from a third party;
(vii) is lawfully in the possession of the other party at the date of this Agreement;
(viii) is lawfully developed or created after the date of this Agreement;
(g) “DATA” means text, numbers, images, tables, charts, graphs, annotations, totals, aggregates, calculations, formulae and other information whether reformatted, summarised, aggregated, converted to a different media, modified (and whether authorized or not), and includes all subsets, powersets, revisions, updates and re-issues;
(h) “DEFAULT EVENT” means the events listed in clause 9.2(a);
(i) “HOSTED SERVICES” means the websites, APIs, API integrations, desktop applications, mobile applications, dashboards, reports, monitoring notification services and scheduled data delivery services provided by VizDynamics that enables Subscribers and Clients to integrate, modify & access their Campaign Data;
(j) “INITIAL CAMPAIGN DATA” means all Data (whether or not Confidential Information):
(i) inputted by or on behalf of a Client;
(ii) provided by the Subscriber to VizDynamics; or
(iii) downloaded from Campaign Data Providers by VizDynamics;
(k) “KNOW HOW” means VizDynamics’s general expertise, knowledge, skill, techniques, methods, procedures, ideas, concepts and experience owned by the Supplier, whether in existence before or after the date of this Agreement;
(l) “CAMPAIGN DATA PROVIDER’S SYSTEMS” means the APIs, software and systems required to transfer the Initial Campaign Data to the Hosted Services;
(m) “RESULT SET” means the multidimensional, graphical and/or tabular output of any scheduled or requested report, dashboard, scorecard, chart, graph, data dump, monitoring alert, API call, web request, function call, remote procedure request, hosted service query, data warehouse query or database query;
(n) “TERM” means the term described in clause. 1.2.
(o) “VIZDYNAMICS BACKGROUND IP” means all Intellectual Property Rights owned or controlled by VizDynamics or which VizDynamics is otherwise entitled to use, including but not limited working files, query sets, source code, schemas, templates, Knowhow and Intellectual Property developed prior to or independently of this Agreement and any improvement, extension, adaptation, enhancement or further development of the same; and
(p) “VIZDYNAMICS DATA” means Data owned by or licensed to VizDynamics other than Campaign Data.