1. “Confidential Information” means all confidential and proprietary information of a disclosing party ] disclosed by or on behalf of such party to the receiving party, whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including Customer Data, the terms and conditions of this Agreement (including pricing and other terms reflected in all Order Forms hereunder), business and marketing plans, technology and technical information, product designs, and business processes. Notwithstanding anything to the contrary, the Hosted Applications, Documentation, and DataIQ Platform are deemed to be Confidential Information of DataIQ. Confidential Information shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the disclosing party; (ii) was known to the receiving party without restriction prior to its disclosure by the disclosing party and without breach of any obligation owed to the disclosing party; (iii) was independently developed by the receiving party without either use of or reference to any Confidential Information or breach of any obligation owed to the disclosing party; or (iv) is received from a third party without restriction and without breach of any obligation owed to the disclosing party.
2. “DataIQ Platform” means any software and hardware that enables DataIQ to provide Customer with access to and use of the Hosted Applications as contemplated by this Agreement.
3. “Customer” means the party set forth on the cover page executing this Agreement and a corresponding Order Form.
4. “Customer Data” means any data, information or material provided or submitted by Customer or their Users to the DataIQ Platform while using the Hosted Applications.
5. “Documentation” means the DataIQ product documentation relating to the operation and use of the Hosted Applications, including technical program or interface documentation, operating instructions, update notes, and support knowledge base and updated from time to time by DataIQ in accordance with Section 7.1.
6. “Hosted Application(s)” means the aggregated data presented on Microsoft Azure via applications and associated content (as identified on an Order Form) to be provided by DataIQ to Customer as a subscription service and made accessible via a web portal designated by DataIQ or by other means as described in the Order Form
7. “Order Form” means an order form mutually executed by DataIQ and Customer evidencing the purchase of subscriptions to the Hosted Applications specifying, among other things, the Subscription Term, the number of Users, the applicable fees, and the billing period and any other commercial terms as agreed to between the parties. Each Order Form, once mutually executed, shall be governed by, and become part of this Agreement, and is hereby incorporated by this reference.
8. “Subscription Term” means the period(s) during which Customer is authorised to use the Hosted Applications pursuant to an Order Form.
9. “Support” means the technical support as specified on the Order Form in accordance with the terms attached herein.
10. “Users” means employees of Customer and their representatives, consultants, contractors, subcontractors, or agents who are authorised to use the Hosted Applications by Customer.
2. Support. DataIQ shall: (i) provide the level of support specified in the Order Form in accordance with this Agreement (ii) make the Hosted Applications available.
3. Security. DataIQ has implemented and shall maintain a written information security program of policies, procedures, and controls governing the processing, storage, transmission, and security of Customer Data. This includes industry standard practices designed to protect Customer Data from unauthorised access, acquisition, use, disclosure, or destruction. DataIQ may periodically review and update the program to address new and evolving security technologies, changes to industry standard practices, and changing security threats, provided that any such update does not materially reduce the overall level of security provided to Customer as described herein.
4. Breach Notification. DataIQ shall report to Customer’s support contacts designated in DataIQ’s customer support portal (“Support Portal“) the accidental or unlawful alteration, unauthorised disclosure of, or access to Customer Data (“Breach“) within 24 hours, after DataIQ determines that a Breach has occurred, unless restricted by law. Accordingly, DataIQ shall share information about the nature and consequences of the Breach that is reasonably requested by Customer to enable it to notify affected individuals, government agencies and/or credit bureaus. Customer has sole control over the content of Customer Data and is solely responsible for determining whether to notify impacted individuals and the applicable regulatory bodies or enforcement commissions and for providing such notice. Customer shall ensure that the support contacts designated in DataIQ’s customer support portal be current and ready to receive any breach notification from DataIQ.
2. Restrictions. Except as otherwise permitted under this Agreement, Customer shall not (i) license, sublicense, sell, resell, transfer, rent, lease, assign (except as provided in Section 11.4 (Assignment)), distribute, disclose, or otherwise commercially exploit the Hosted Applications; (ii) copy, modify or make derivative works based upon the Hosted Applications; (iii) “frame” or “mirror” the Hosted Applications on any other server or device; (iv) access the Hosted Applications for competitive purposes or use the Hosted Applications for application service provider, timesharing or service bureau purposes, or any purpose other than its own internal use, (v) decompile, disassemble, reverse engineer or attempt to discover any source code or underlying ideas or algorithms of the Hosted Applications, (vi) remove, obscure or modify a copyright or other proprietary rights notice in the Hosted Applications; (vii) use the Hosted Applications to send or store infringing, obscene, threatening, libelous, or otherwise unlawful material; (viii) use the Hosted Applications to create, use, send, store, or run material containing software viruses, worms, Trojan horses or otherwise engage in any malicious act or disrupt the security, integrity or operation of the Hosted Applications or the DataIQ Platform; (ix) attempt to gain or permit unauthorised access to the Hosted Applications or its related systems or networks; or (x) permit or assist any other party (including any User) to do any of the foregoing.
3. User Reassignment. User subscriptions are for designated Users and cannot be shared or used by more than one User but may be reassigned to new Users replacing former Users who no longer require use of the Hosted Applications. Unless otherwise specified in the relevant Order Form, the replacement User shall be under the same Subscription Term of the original User.
4. Additional Users. Additional Users may be purchased by signing an Order Form and unless otherwise specified in the relevant Order Form, the Subscription Term of additional Users shall be coterminous with the Subscription Term in effect at the time the additional Users are added.
5. Restricted Information. Unless otherwise agreed by the parties in writing on an Order Form with reference to this Section 3.5, Customer shall not (and shall use commercially reasonable efforts to ensure that its suppliers do not) upload, provide or submit any sensitive personal information (as defined in the Privacy Act (Cth) 1988)) to the Hosted Applications or DataIQ Platform.
2. Taxes. DataIQ’s fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, including for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes“) and Customer shall be responsible for payment of all Taxes associated with this Agreement and all Order Forms, except that DataIQ is solely responsible for taxes assessable against DataIQ based on DataIQ’s net income, property, and employees. If Customer is legally entitled to an exemption from any sales, use, or similar transaction tax, upon signing an Order Form, Customer shall provide to DataIQ with a legally sufficient tax exemption certificate for each taxing jurisdiction, and DataIQ shall not charge Customer any taxes from which it is exempt. If any deduction or withholding is required by law, Customer shall notify DataIQ and shall pay DataIQ any additional amounts necessary to ensure that the net amount that DataIQ receives, after any deduction and withholding, equals the amount DataIQ would have received if no deduction or withholding had been required. Upon request, Customer shall provide documentation showing that the withheld and deducted amounts have been paid to the relevant taxing authority.
2. Remedies. Except as expressly provided in this Agreement, if the receiving party discloses or uses (or threatens to disclose or use) any Confidential Information of the disclosing party in breach of confidentiality protections hereunder, the disclosing party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that any other available remedies may be inadequate.
2. Procedure. To submit a warranty claim under this Section, Customer shall provide written notice of a warranty claim specifying the non-conformity. If the non-conformity persists without relief more than 30 days after written notice of a warranty claim provided to DataIQ under this Section, then Customer may terminate the affected Hosted Applications and DataIQ, as its sole liability in connection with a breach of this warranty, shall refund to Customer any prepaid subscription fees covering the remainder of the Subscription Term of the affected subscription after the effective date of termination. Notwithstanding the foregoing, this warranty shall not apply to any non-conformity due to any modification of or defect in the Hosted Applications that is made or caused by someone other than DataIQ (or someone acting at DataIQ’s direction).
3. DISCLAIMER OF WARRANTIES. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, DATAIQ DOES NOT MAKE ANY OTHER REPRESENTATION, WARRANTY, OR GUARANTY, AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE HOSTED APPLICATIONS, DATAIQ PLATFORM, UPDATES, DOCUMENTATION, SUPPORT AND/OR ANY OTHER DATAIQ SERVICES PROVIDED OR OFFERED HEREUNDER. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SERVICES PROVIDED HEREUNDER ARE PROVIDED STRICTLY ON AN “AS IS” BASIS AND ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR ANY WARRANTIES ARISING FROM USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. THE HOSTED APPLICATIONS CONTAIN DATA AND CONTENT THAT IS BASED ON PUBLICLY AVAILABLE INFORMATION.
2. Customer’s Obligations. Subject to Section 8.3, Customer shall: (a) defend DataIQ, its officers, directors, and employees against any Claim that arises from the Customer Data or that relates to a dispute between Customer and its supplier; and (b) pay any court-ordered award of damages or settlement amount which may include any expense, liability, loss, damage, costs, or reasonable attorney’s’ fees, each to the extent payable to a third party, to the extent arising from such Claims. Customer’s indemnification obligation shall not apply: (1) if the Customer Data is modified by DataIQ or by any party under DataIQ’s control, without Customer’s authorisation but solely to the extent the Claim is caused by such modification; or (2) to the extent the Claim arises as a result of any use or disclosure of the Customer Data by DataIQ not contemplated by this Agreement.
3. Process. Each party’s indemnity obligations are subject to the following: (i) the indemnified party shall promptly notify the indemnifier in writing of any Claims (provided, however, that the failure to give prompt written notice shall not limit the rights to indemnification except to the extent that the indemnifier is materially prejudiced by such failure); (ii) the indemnifier shall have sole control of the defense and all related settlement negotiations with respect to any Claims (provided that the indemnifier may not settle any Claims that require the indemnified party to admit any civil or criminal liability or incur any financial obligation without the indemnified party’s consent, which consent shall not be unreasonably withheld); and (iii) the indemnified party shall cooperate fully to the extent necessary at the indemnifier’s cost in such defense and settlement.
2. EXCLUSION OF DAMAGES. TO THE EXTENT PERMITTED BY LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL, COVER, BUSINESS INTERRUPTION, OR OTHER SIMILAR DAMAGES OF ANY TYPE OR KIND (INCLUDING, WITHOUT LIMITATION, LOSS OF REVENUE, PROFITS, USE, GOODWILL OR OTHER ECONOMIC ADVANTAGE), REGARDLESS OF THE CAUSE, ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT OR THE SERVICES PROVIDED HEREUNDER, EVEN IF THE PARTY HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR EVEN IF A PARTY’S REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE.
3. LIMITATION OF LIABILITY EXCLUSIONS. NOTWITHSTANDING THE FOREGOING, NOTHING HEREIN SHALL LIMIT A PARTY’S LIABILITY FOR ITS (A) GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, (B) FRAUD OR FRAUDULENT MISREPRESENTATION, (C) DEATH OR BODILY INJURY CAUSED BY NEGLIGENCE, (D) OBLIGATIONS EXPRESSLY STATED UNDER SECTION 8 (INDEMNIFICATION), OR (E) INFRINGEMENT BY A PARTY OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS.
2. Termination. A party may immediately terminate this Agreement for cause: (i) upon 30 days written notice of a material breach to the other party if such breach remains uncured at the expiration of such period; or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors that is not dismissed within 60 days of its commencement or an assignment for the benefit of creditors. Upon any termination for cause by Customer, DataIQ shall refund any prepaid fees covering the remainder of the Subscription Term after the effective date of termination. Termination shall not relieve Customer of the obligation to pay any fees accrued or payable to DataIQ prior to the effective date of termination.
3. Return of Customer Data. Customer will have a period of 60 days after the effective date of termination of the Agreement (“Transition Period“) to download any Customer Data. Upon such request, at no additional cost to Customer, DataIQ will promptly make available for download transactional records from standard objects included in the outbound integrations (e.g., requisitions, orders, invoices, expenses) in industry standard format (e.g., JSON, CSV) at time of decommissioning along with attachments in their native format (e.g., PDF, JPEG). For clarity, such data will not include system generated log files or DataIQ specific configuration data. After the Transition Period, DataIQ shall have no obligation to maintain or provide any Customer Data and may thereafter, unless legally prohibited, delete all Customer Data in its systems or otherwise in its possession or under its control. For purposes of clarification, archival copies of Customer Data will be maintained subject to DataIQ’s standard data backup and retention processes and subject to DataIQ’s confidentiality obligations herein.
4. Transition Services. Additionally, if Customer elects to purchase transition services upon termination of the Agreement, DataIQ shall provide transition services to facilitate the orderly and complete transfer of the Customer Data to Customer or to any replacement provider designated by Customer (“Transition Services”), provided that the scope and fees of the Transition Services shall be mutually agreed in a statement of work prior to commencing Transition Services. Notwithstanding the provisions of this Section, in no event shall DataIQ be required to disclose any of its Confidential Information or provide a license under any of its intellectual property to Customer or any third party as part of the Transition Services. For the avoidance of doubt, if Customer elects to receive Transition Services, Customer shall continue to pay pro-rated subscription fees for the use of the Hosted Applications during the transition period.
5. Survival. Upon expiration or termination of the Agreement, Sections 1 (Definitions), 3.2 (Restrictions), 4.1 (Billing and Payment of Fees), 5 (Proprietary and Other Rights), 6 (Confidential Information), 7.3 (Disclaimer of Warranties), 8 (Indemnification), 9 (Limitations of Liability), 10 (Term; Termination), and 11 (General Provisions) of this Agreement shall survive.
2. Force Majeure. No party shall be liable or responsible to the other party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, when and to the extent such failure or delay is caused by or results from acts beyond the affected party’s reasonable control (a “Force Majeure Event“). The party suffering a Force Majeure Event shall use reasonable efforts to mitigate against the effects of such Force Majeure Event. For the avoidance of doubt, a Force Majeure Event does not limit Customer’s obligations to pay fees duly owed to DataIQ. If the effects of the Force Majeure Event continue unmitigated for a period of 30 consecutive days, then either party may terminate this Agreement and/or any Order Form, upon written notice to the other party, and DataIQ, as its sole liability, shall refund any prepaid fees covering the remainder of the Subscription Term of the affected subscription after the effective date of termination.
3. Notice. Except as provided elsewhere in this Agreement, either party may give notice by written communication sent by next-day mail delivered by a nationally recognised delivery service: (i) if to Customer, to Customer’s address on record in DataIQ’s account information.
4. Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Order Forms), without consent of the other party, to its Affiliate or in connection with a merger, acquisition, corporate reorganisation, or sale of all or substantially all of its assets. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
5. Governing Law, Jurisdiction and Dispute Resolution. The Governing Law, and Place of Jurisdiction shall be determined according to where DataIQ is domiciled.Exhibi
6. Entirety. The Agreement comprises the entire agreement between Customer and DataIQ and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein. In the event of any conflict between this Agreement and the Order Form, the Order Form shall govern. No text or information set forth on any other purchase order, preprinted form or document shall add to or vary the terms and conditions of this Agreement. Modifications and amendments to this Agreement shall be enforceable only if they are in writing and are signed by authorised representatives of both parties. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. Customer agrees that Customer’s purchase of any subscription is neither contingent upon the delivery of any future functionality or features nor dependent upon any oral or written comments made by DataIQ with respect to future functionality or features. The parties are independent contractors, and no joint venture, partnership, employment, or agency relationship exists between Customer and DataIQ as a result of the Agreement or use of the Hosted Applications or DataIQ Platform. There are no third-party beneficiaries to this Agreement. The failure of a party to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision.
The following describes the technical support services (“Technical Support“) that DataIQ shall provide for the support level purchased by Customer (“Support Level“) as stated on the Order Form. The following terms may be updated from time to time, however, for each Order Form, the terms effective as of the execution of the Order Form shall apply for the duration of the applicable Subscription Term.
1. Scope. The purpose of Technical Support is to address defects in the Hosted Applications that prevent them from performing in substantial conformance with the applicable Documentation. A resolution to such a defect may consist of a fix, workaround or other relief reasonably determined by DataIQ’s Technical Support staff.
2. Customer Responsibilities
Customer shall designate no more than the number of DataIQ Platform administrators (“Designated Support Contacts”) set forth above who may contact and interact with DataIQ in connection with Technical Support requests. Customer’s Designated Support Contacts shall answer questions and resolve issues as needed when they arise from other Users of the Hosted Applications. Customer’s Designated Support Contacts enter support request tickets, work through Technical Support issues with DataIQ, and take action as needed to implement the resolution to the issue. Customer agrees that DataIQ may communicate and follow instructions to make changes to Customer Data and/or Customer’s instances, with its Designated Support Contacts via email, phone or through the Support Portal.
Customer shall ensure that Customer’s Designated Support Contacts are trained on the use and administration of the Hosted Applications. Customer shall ensure that the name, contact and other information for these Designated Support Contacts are current in the Support Portal. Customer may replace Designated Support Contacts by updating the applicable information in the Support Portal, provided that at no time may Customer have more than the number of Designated Support Contacts permitted based on its Support Level.
3. Support Exclusions
DataIQ is not required to provide resolutions for immaterial defects or defects due to modifications of the Hosted Applications made by anyone other than: (a) DataIQ; or (b) anyone acting at DataIQ’s direction. Technical Support does not include professional services for implementation, configuration, integration or customisation of a Hosted Application or custom software development, training, or assistance with administrative functions.
The following describes DataIQ’s Security Program as of the Effective Date. The following terms may be updated from time to time, however, for each Order Form, terms effective as of execution of the Order Form shall apply for the duration of the applicable Subscription Term.
A. ORGANISATIONAL ACCESS CONTROL
1. Security Awareness and Training. DataIQ maintains a security awareness program that includes training of DataIQ personnel on DataIQ’s security program. Training is conducted at the time of hire and periodically in accordance with DataIQ’s information security policies.
2. Subprocessors and Data Transfer. DataIQ may engage Subprocessors and other Third-Party Suppliers (each as defined below) to perform some of its obligations under the Agreement. DataIQ shall require that Subprocessors only access and use Customer Data in a manner consistent with the terms of the Agreement and bind Subprocessors to written obligations to protect Customer Data.
B. TECHNICAL SECURITY MEASURES
1. Database Protection. Database infrastructure is segregated from the application servers and the Internet via firewalls.
2. Encryption. All communications are encrypted between the data exporter and the data centers using high-grade encryption (AES-256). Access to DataIQ’s on-demand applications and services is only available through secure sessions (https) and only available with an authenticated login and password. Passwords are never transmitted or stored in their original form.
3. Customer Data Isolation. DataIQ Platform services use application or process level segmentation to accomplish data isolation.
DataIQ’s Security Program does not apply to any processing, storage, or transmission of data outside the DataIQ Platform, and DataIQ is not responsible for the security practices (or any acts or omissions) of any third-party service providers engaged by or on behalf of Customer. The DataIQ Security Program excludes: (i) data or information shared with DataIQ that is not stored in the DataIQ Platform; or (ii) data in Customer’s virtual private network (VPN) or a third-party network other than one that is under a subcontract with DataIQ to assist DataIQ in fulfilling its obligations in the Agreement. Additionally, DataIQ shall not be liable for any data (including where part of Customer Data) used, processed, stored or transmitted by Customer or Users in violation of this Agreement.