Last Updated 7 July 2022
Version 3.0
This agreement is between the person set out on the Order Form (Customer) and Source of True Pty Ltd ABN 34 602 818 566 (SoT) for the provision of a digital data quality assurance service called DataTrue (the Service).
1. DEFINITIONS
1.1. In this Agreement, unless the context requires otherwise, the following terms have the following meanings:
Account means a DataTrue account created by or on behalf of Customer;
Commencement Date means the date for commencement set out in the Order Form, and, if no date is set out there, the date on which SoT receives payment in full of the Fees in respect of the first service period;
Confidential Information of a party means all information of that party which is disclosed by that party and is marked as confidential or would reasonably be considered to be confidential and, except as otherwise agreed in writing, includes such information disclosed prior to the execution of this agreement;
Fees means the charges by SoT for the Service and includes those set out in the Plan and Order Form;
Order Form means the order form or forms completed by Customer when applying for the Service as updated from time to time. The Order Form may be on paper or on line;
Plan means the service plan set out in the Order Form;
Plugin means additional software, such as a mobile application or browser plugin provided by SoT;
Site means www.DataTrue.com and any other website nominated by SoT from time to time;
Term means the term set out in the Order Form or, if no term is set out there, 12 months.
Usage Policy means the policy of that name made available by SoT from the Site.
1.2. No provision of this Agreement may be construed against a party because that party drafted that term.
2. THE SERVICE
2.1. During the term of this Agreement SoT will make the Service available to Customer from the Site. Customer agrees that unless explicitly stated otherwise, any new features that augment or enhance the Service, and/or any new Service(s) subsequently purchased by the Customer will be subject to this Agreement.
2.2. Customer must ensure that the Service is only used for the purpose of testing, in good faith, domains. Customer must ensure that no SoT Account is used for any illegal purpose.
2.3. SoT will provide Customer with an initial Account. Customer may use that Account to set up additional Accounts for its employees and contractors to access the Service. Customer must keep, and must ensure that each Account name and password is kept confidential and not disclosed to any person other than its employees and contractors.
2.4. Customer must ensure that each person who uses an Account complies with the Usage Policy.
2.5. SoT has no responsibility for the transfer of data to or from its servers on the network side of the interface with its servers. SoT may provide access to the Service using industry standard security protocols, such as SSL. Customer warrants that it has evaluated the access provided by SoT and is satisfied that the manner of access is appropriate to its needs including as to privacy and security.
2.6. SoT may suspend the provision of the Service to Customer at any time without prior notice where:
Customer has failed to pay any amount due under this Agreement by the due date for payment (including, for example, the failure of a credit or debit card transaction);
SoT forms the opinion, in its sole discretion, that Customer is in breach of clause 2.2;
Customer is in breach of clause 2.4, other than a minor or insubstantial breach.
2.7. SoT may make Plugins available to Customer to assist Customer’s access to the Service. Customer may install and use each Plugin for the purpose of accessing the Service.
2.8. Customer may upgrade its Plan by request in writing or email or through online account management to SoT. SoT may charge Customer for the new Plan less a pro rata of any amounts paid by Customer for its existing Plan but unused at the time of the upgrade. Customer may purchase additional plan steps at rates set out in the Plan if the existing Plan usage limit is reached.
2.9. Customer may also purchase additional hours of support beyond those included in the current Plan at rates notified on the DataTrue website from time to time.
3. FEES
3.1. Except where otherwise agreed, including on the Order Form:
SoT may charge Customer in advance;
SoT may charge Customer in accordance with the Plan;
all amounts quoted by SoT are exclusive of all taxes and duties, including taxes in the nature of a value added tax (such as the Australian goods and services tax (GST));
SoT may, in addition to the Fees, add to each invoice the amount of any value added or other tax (including GST) in respect of any relevant supply that SoT is required to collect in relation to the transaction.
3.2. Where Customer has provided details of a credit or debit card to SoT Customer authorises SoT to charge the amount of the Fees (including Fees for any renewals) to the card.
3.3. Where SoT agrees to charge by invoice SoT will provide an invoice to Customer at the start of each agreed accounting period. Where no accounting period is agreed SoT may invoice Customer monthly in advance. Customer must pay each invoice within 14 days of the date of that invoice.
3.4. SoT’s records of Customer’s usage are presumed to be accurate except to the extent Customer can prove otherwise. Where Customer disputes any invoice, Customer must pay the full amount of the invoice and, if the dispute is resolved in Customer's favour, SoT will credit the relevant amount to Customer.
3.5. SoT may charge Customer the Fees for all usage through any Customer Account. Customer is liable for all usage of each Account, regardless whether Customer has authorised the particular use in question.
4. CONFIDENTIALITY AND PRIVACY
4.1. Each party must keep the Confidential Information of the other party confidential and must not disclose that information to any third party without the written consent of the other party. Each party must ensure that any person it discloses the other party’s Confidential Information to (including to its own employees) agrees to keep that information confidential on similar terms. Each party must use the Confidential Information of the other party only for the purpose of complying with its obligations under this agreement.
4.2. A party’s obligations of confidentiality in this agreement do not apply to information which:
is or becomes generally known other than through a breach of this agreement;
that party can prove was developed independently by that party without reference to the Confidential Information of the other party;
is rightfully received by that party from a third party without an obligation of confidentiality;
that party can prove was known to that party prior to the disclosure of the information by the other party.
4.3. SoT acknowledges that reports and data generated as a result of tests run using the Service are the Confidential Information of the Customer.
4.4. Customer acknowledges and agrees that the Service and any necessary software used in connection with the Service contain proprietary and confidential information that is protected by applicable intellectual property and other laws.
4.5. Each party retains all right, title and interest in its data, information and intellectual property rights, and nothing in this Agreement is intended to transfer or diminish such rights. Nothing in this Agreement gives Customer any right, title or interest in the Service, Plugins and underlying software and proprietary and intellectual property rights.
4.6. SoT may use aggregate information, including information generated based on the usage of Customer’s Accounts, to measure general Service usage patterns and characteristics of its user base, and may include such aggregate information about its audience in promotional materials or reports to third parties. This aggregate information will not reference any personally identifiable information, and will not be traceable to a specific person.
5. TERM AND TERMINATION
5.1. This Agreement commences on the Commencement Date.
5.2. Unless terminated earlier, this Agreement will automatically renew at its expiry for a period equal to the Term, or, if the term is greater than 12 months, for 12 months, subject to cause 5.2 (a). A maximum of two (2), renewals under this clause 5.2 may occur. Unless otherwise agreed, for each renewal: the terms applying from the start of the renewal are the most recent version of these terms and conditions notified to Customer (including by making the terms available on the Site); and the Fees applicable to the renewal are SoT's then current rates as at the date the Agreement would have expired.
At the completion of two terms, either party may give thirty days written notice of termination at any time, without cause.
5.3. Either party may terminate this Agreement for cause by notice in writing if all of the following are true:
the other party is in breach of this agreement;
the first party has provided notice of the breach requiring the breach to be remedied within 30 days or, in respect of non payment by Customer, 7 days; and
that breach has not been rectified within that period.
5.4. SoT may terminate any free account at any time without cause and without having to give notice.
5.5. Upon termination of this Agreement:
Customer is not entitled to any refund of any amounts paid in advance;
all outstanding invoices become due and payable immediately;
SoT may delete any data relating to any Customer Account 14 days after the termination of this Agreement.
5.6. Each clause which by its nature and the circumstances ought to survive the termination of this agreement survives. The following clauses also survive the termination or expiry of this agreement: 4, 5, 6, 7, 8, 9, 10.
6. REPRESENTATIONS & WARRANTIES
6.1. To the extent permitted by law, SoT excludes all warranties, guarantees and conditions that would otherwise be implied into this Agreement by law. Where SoT is not able to exclude such a warranty, guarantee or condition, SoT limits, to the extent permitted by law, its liability for a breach of that warranty, guarantee or condition to one or more of the following at its option:
in the case of goods, any one or more of the following:
the replacement of the goods or the supply of equivalent goods;
the repair of the goods;
the payment of the cost of replacing the goods or of acquiring equivalent goods;
the payment of the cost of having the goods repaired; and
in the case of services:
the supplying of the services again; or
the payment of the cost of having the services supplied again.
6.2. Customer represents and warrants that Customer has not provided any false information to gain access to the Service and that billing information is correct. Customer warrants on a continuing basis that it has the right to conduct the tests carried out through the use of the Service.
7. INDEMNIFICATION
7.1. Customer must defend, indemnify and hold SoT harmless from all third party claims and all costs and direct damages awarded to a third party to the extent they arise out of Customer's breach of this Agreement or any any law.
8. EXCLUSION OF DAMAGES AND LIMITATION OF LIABILITY
8.1. IN NO EVENT WILL SOT'S TOTAL AGGREGATE LIABILITY UNDER ALL CLAIMS, WHETHER IN TORT (INCLUDING NEGLIGENCE), CONTRACT OR OTHERWISE, ARISING OUT OF, OR IN RELATION TO THE RELATIONSHIPS CONTEMPLATED BY, THIS AGREEMENT EXCEED THE FEES RECEIVED BY SOT FROM CUSTOMER DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE INITIAL EVENT RESULTING IN SUCH CLAIMS. SOT HAS NO LIABILITY FOR LOST PROFITS OR FOR SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, REGARDLESS OF THE FORM OF ACTION, EVEN IF SOT IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS ARE CUMULATIVE FOR ALL CLAIMS HOWSOEVER ARISING, AND SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF THE REMEDIES PROVIDED IN THIS AGREEMENT SHALL FAIL OF THEIR ESSENTIAL PURPOSE.
8.2. Subject to clause 6 and to the extent permitted by law, SoT has no liability for any data that is stored without authorization, lost, altered, or intercepted as a result of the data transiting a network to Customer after leaving SoT’s servers.
9. DISPUTE RESOLUTION
9.1. Subject to clause 9.2, prior to commencing any action in any court or any action in any other form of judicial of quasi-judicial forum the parties must comply with the requirements of this clause 9.
9.2. Nothing in this clause 9 prevents either party seeking urgent interlocutory relief from a court in relation to any breach or potential breach of an obligation of confidentiality or in relation to any other matter of urgency.
9.3. Where there is a dispute between the parties in respect of a matter the subject of this Agreement, Customer must cause a senior representative with authority to settle the dispute to be available and to meet with SoT’s representative with a view to resolving the dispute. Where a dispute remains unresolved for a period of 20 days each party is released from the requirements of clause 9.1 in relation to that dispute.
9.4. The discusions between the parties under this clause 9 are made on a “without prejudice” basis; and cannot be tendered or referred to in evidence in any judicial or quasi judicial proceedings without the consent of the party making the relevant statement.
10. GENERAL
10.1. Except as set out in this Agreement to the contrary, nothing in this Agreement:
gives either party the ability to act or incur liability on behalf of the other party; or
creates a relationship of joint venturers, principal and agent or employee and employer between the parties.
10.2. Except where expressly set out to the contrary, nothing in this Agreement grants the Customer any rights over any intellectual property rights (including copyright, patents, and rights to the registration of such rights) held by SoT at any time during the term of this Agreement. Where such intellectual property rights arise as a result of the performance of this agreement by or on behalf of SoT, those rights vest on creation in SoT.
10.3. SoT may vary the Usage Policy from time to time by giving notice to Customer. Subject to clause 5.2, this Agreement cannot be varied except in writing signed by both parties.
10.4. A waiver of rights under this Agreement can only occur in writing signed by the party granting the waiver. Except to the extent set out in the waiver, a waiver is only effective in relation to the specific facts and rights set out in it and does not operate to waive any other rights or to waive the same rights in respect of different facts or circumstances.
10.5. Where a part of this Agreement is held by a court to be illegal or otherwise unenforceable, and the unenforceability of that part does not substantially alter the character of the bargain that would have been in existence between the parties had that part been enforceable, that part is severed and the balance of this Agreement will continue unaffected.
10.6. This contract is governed by the laws in force in the State of Victoria, Australia. Each party submits to the exclusive jurisdiction of the courts of that State. All actions in relation to this Agreement must be brought in that State.
10.7. Except to the extent the context requires otherwise, where an act, right or obligation under this Agreement is subject to the consent of a party, it may grant or withhold that consent in its sole discretion and is not required to provide a reason for that grant or withholding.
10.8. Notices under this Agreement must be given in writing. Notices under this Agreement may be given to the address of the party listed at the front of this agreement, or, where another address is notified by that party in accordance with this Agreement, the address most recently notified by that party.
10.9. Customer agrees to provide SoT with Customer's e-mail address, to promptly provide SoT with any changes to Customer's e-mail address, and to accept emails (or other electronic communications) from SoT at the e-mail address Customer specifies. Except as otherwise provided in this Agreement, the Customer further agrees that SoT may provide any and all notices, statements, and other communications to the Customer through either e-mail or posting on the Site.
10.10. SoT's obligations under this Agreement are suspended to the extent it is unable to comply with them as a result of a cause beyond the reasonable control of SoT. SoT will promptly notify the Customer upon such an event occurring. The actions of telecommunications and other utilities, hosting providers and other subcontractors to SoT are outside the reasonable control of SoT for the purposes of this agreement.
10.11. SoT may assign its rights and obligations under this Agreement. Customer must not assign any of its rights or obligations under this Agreement without the prior written consent of SoT.
10.12. This Agreement sets out the whole of the agreement between the parties in relation to its subject matter. It supercedes all prior negotiations and correspondence. In particular none of the following are of any effect unless agreed in writing by the parties in accordance with clause 10.3: annotations on any cheques or accompanying any other transfer of money; any terms on purchase or order documents; or any other correspondence between the parties.
10.13. Service Provider and Customer will cooperate in good faith to create a mutually acceptable joint press release concerning the transaction described by this Agreement, which press release may be distributed when approved by authorized Customer staff. Service Provider may confirm Customer is a customer of Service Provider, may include Customer’s name on Service Provider’s website, and is authorized to include Customer’s name and/or logo in Service Provider’s sales presentations. Nothing in this Agreement shall be construed to grant either party any right, title or interest in the name or logo of the other party beyond that granted herein.