Updated: 01 September 2021
- Disaster Science Pty Ltd ABN 306 528 380 63 (Supplier).
- You, an Enterprise User of Disaster Science's services (Recipient).
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By making the relevant clickwrap consent or checking / ticking the relevant box at the end of this Agreement (or as otherwise set out by the Supplier), the Recipient agrees and acknowledges that the Recipient:
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has read and understood the terms of this Agreement; and
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has accepted and agrees to be bound by all terms of this Agreement.
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This Agreement sets out the terms and conditions under which the Supplier will perform the Services.
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Capitalised terms in this 'Background' section are defined in clause 1 - 3.
IT IS AGREED as follows:
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(Definitions): In this Agreement, unless the context otherwise requires:
Business Day means a day which is not a Saturday, Sunday or a public holiday in the Australian Capital Territory.
Business means all activities carried on by one or more of the parties from time to time.
Commencement Date means the date of this Agreement.
Complying Party means any party, from time to time, that is not a Defaulting Party.
Confidential Information in relation to any person means any and all confidential and/or proprietary knowledge, data or information which is in the knowledge, possession or control of that person (or any employee or agent of that person), including:
- the terms of this Agreement;
- all and every part of the information regarding that party's business affairs obtained or disclosed during the course of negotiation and implementation of this Agreement;
- intellectual property rights, trade secrets, inventions, mask works, ideas, processes, formulas, source and object codes, data, programs, other works of authorship, know-how, improvements (including without limitation improvements in process), discoveries, developments, drawings, designs and techniques; and
- information regarding plans for research, development, new products, marketing and selling, business plans, budgets and unpublished financial statements, licences, prices and costs, suppliers and customers.
Corporations Act means the Corporations Act 2001 (Cth) and all laws and regulations made pursuant to that Act.
Defaulting Party means a party that is suffering an Event of Default from time to time.
Default Notice has the meaning given by clause 29.
Event of Default means any of the events or circumstances set out in clause 28 - 32.
Expenses means expenses the Supplier directly or indirectly incurs in the course of providing Services to the Recipient.
Force Majeure Event means any catastrophic event, and includes epidemic or pandemic, including any consequence of the ongoing Coronavirus pandemic, fire, flood, earthquake, hurricane or other natural disaster, war, terrorism, pandemic, blockade or embargo, act of civil or military authority, or interruption or failure of utility services including electric power, air, telecommunications or water.
Interest Rate means the bank bill swap rate published by the Australian Stock Exchange, or its successor, for a 3-month term at or about 11am on the first date on which the entitlement to interest accrue, plus 3%.
Platform means any platform necessary to receive the Services, including, but not limited to a website, token, applications, API, or other data platform.
Product means the Services offered.
Services means the Services as set out in Schedule 1 to this Agreement.
Services Fee means, in respect of the Services, the fee set by the Supplier.
Underlying Systems means the IT solutions, systems, networks (including software and hardware), website and application programming interface used to provide the Services, including any third-party solutions, systems and networks.
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(Interpretation): In this Agreement unless the contrary intention appears:
- Headings are for convenience only and do not form part of this Agreement or affect its interpretation.
- A reference to any legislation includes regulations and other instruments under it and any variation or replacement of any of them.
- The singular includes the plural and vice versa, and words importing any gender include the other genders.
- References to any instrument are to that instrument as it may from time to time to be amended to extended in accordance with its terms.
- A reference to a "person" includes an individual, a firm, a body corporate, a partnership, a joint venture, an unincorporated body or association or any authority.
- References to dollars or $ is a reference to Australian dollars, unless denoted as referring to an international currency.
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(Drafting responsibility): No provision of this Agreement is to be construed against a party because that party (or that party's adviser) was responsible for drafting it.
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(Binding nature of Agreement): Each party agrees that this Agreement is binding on that party's legal personal representative, heirs, successors and permitted assigns.
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(Exclusion of agency and partnership): Nothing in this Agreement is to be treated as creating a partnership, joint or co-venture or fiduciary obligation between the parties, or any two or more of them, under the laws of any applicable jurisdiction and, except as specifically provided in this Agreement, no party may act or has any authority to act as agent of or trustee for or in any way bind or commit any other party to any obligation.
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(Objectives): Each party creates this Agreement for the purpose of regulating the provision of Services and resources between the parties, and in respect of the Business.
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(Implementation): Each party must, at all times, during the term of this Agreement:
- ( Information ): provide accurate information to each other party in relation to the Services and the Business;
- ( Action ): perform, or procure the performance of, any action within its power or control necessary or desirable to perform this Agreement; and
- ( Decision ): not unreasonably delay any action, consent or decision required by that party under this Agreement.
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(Commencement): Unless expressly stated otherwise in this Agreement, the rights and obligations created by this Agreement commence on, and are enforceable from, the Commencement Date.
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(Term and termination): This Agreement will continue in full force and effect until it is terminated pursuant to its terms.
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(Provision of Services): The Supplier agrees to provide the Services to the Recipient on and subject to the terms of this Agreement.
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(Arm's Length Transactions): Unless otherwise agreed, the parties must ensure that the Services are performed on commercial, arm's length terms in accordance with current market practice.
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(Default Use of Services): Unless otherwise agreed in writing or as part of a Product offering by the Supplier forming Schedule 2, the Recipient must:
- use the Services exclusively for its personal purposes limited to viewing data on natural disasters and emergency incidents for and relation to only the Recipient;
- use the Services in accordance with all applicable laws;
- not sell or make the Services available to any third party, or otherwise commercially utilise or exploit the Services in any way whatsoever; and
- comply with any terms, inclusive of privacy and general use terms, on the website (https://bushfire.io/), as updated from time to time by the Supplier.
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(Access conditions): When accessing the Services, the Recipient must not:
- attempt to undermine the security or integrity of the Underlying Systems;
- use, or misuse, the Service in any way which may impair the functionality of the Underlying Systems or impair the ability of any other user of the Services;
- attempt to view, access or copy any material or data other than:
- that which the Recipient is authorised to access; and
- to the extent necessary for the Recipient to use the Services in accordance with this Agreement;
- use the Services to undertake or assist with provision of data provided by the Supplier to any third parties or in relation to any third parties;
- unless authorised (see clause 12), commercially exploit the Services (including by making it available to a third party); and
- use the Service in a manner, nor transmit, input or store any data, that breaches any third party right (including Intellectual Property Rights and privacy rights) or is objectionable, incorrect or misleading.
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(Acceptable Use): The Recipient agrees to take reasonable steps not to use the Services in a way that is unacceptable. Use is unacceptable if:
- it involves anything which is false, defamatory, harassing or obscene;
- it would involve the contravention of any person's rights (including Intellectual Property Rights and privacy rights);
- it may breach any laws; or
- it involves fraudulent activity.
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(Fee): In consideration of the provision of the Services the Recipient agrees to pay the Services Fee to the Supplier.
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(Expenses): The Recipient agrees to reimburse the Supplier for all properly incurred Expenses.
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(Adjustment): The Services Fee may be reviewed by the Supplier at any time and adjusted by written 60 days written notice to the Recipient.
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(Invoicing): Unless otherwise agreed, the Supplier must issue an appropriate invoice for the Services Fee associated with the Services to be performed during an upcoming calendar month. No amount will be payable under this Agreement unless it is included in the balance of a properly issued invoice, unless the terms of payment are as otherwise agreed in advance.
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(Payment Terms): Unless otherwise agreed, the Recipient must make full payment of any invoice issued pursuant to clause 18 before receiving any Services.
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(Interest): Unless otherwise agreed, if the Recipient fails to make full payment of an invoice by the due date for payment specified on that invoice, interest shall accrue on the unpaid amount at the Interest Rate, compounding daily on the basis of a 365 day year.
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(Tax and withholding): The Services Fee is exclusive of any applicable tax including any withholding tax, value added tax, goods and services tax, surcharges and/or any other similar tax. Subject to any further agreement, the parties agree that any legally owed value added tax, goods and services tax, surcharges or any other similar tax which may be due on the Services Fee, shall be levied in addition to the Services Fee in accordance with the applicable laws.
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(Limitation): To the extent that the Supplier is liable for breach of contract in connection with the supply of the Services to the Recipient, the Supplier excludes liability for loss of profit or product, increased cost of production, loss of customer goodwill, or other special punitive, indirect or consequential loss or damage and, to the extent permitted by law, personal injury or death.
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(Indemnity): The Recipient agrees to indemnify the Supplier and its officers, employees, contractors and agents at all times from and against any loss (including legal costs and expenses) incurred or suffered by the Supplier arising from any claims against the Supplier with respect to this Agreement.
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The Supplier must ensure that the Services are provided to the Recipient:
- promptly, carefully, exercising all due care and skill and judgement, in an efficient and professional manner and in accordance with accepted professional and business practices, using appropriately trained and skilled personnel; and
- in a professional manner and to the standard expected of an arms' length service Supplier providing services such as the Services.
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(General Warranties): Each party (each a Warranting Party) warrants to the other party:
- The execution and delivery of this Agreement has been properly authorised by all necessary action of the Warranting Party.
- The Warranting Party has full power and authority to execute and deliver this Agreement and to perform or cause to be performed its obligations under this Agreement.
- This Agreement constitutes a legal, valid and binding obligation of the Warranting Party enforceable in accordance with its terms by appropriate legal remedy.
- This Agreement does not conflict with, or result in a breach of, or default under any material term or provision of, any agreement or deed or any writ, order or injunction, judgment, law, rule or regulation to which the Warranting Party is a party, or is subject to, or bound by.
- The Warranting Party, in satisfying its obligations under this Agreement (including the provision of the Services) has not breached any material term or provision of, any agreement or deed or any writ, order or injunction, judgment, law, rule or regulation to which the Warranting Party is a party, or is subject to, or bound by.
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(No implied warranties): To the maximum extent permitted by law, the Supplier warranties are limited to those expressly stated in this Agreement and the Supplier otherwise makes no representation concerning the quality of the Services and does not promise that the Services will:
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meet the Recipient's requirements or be suitable for a particular purpose, including that the use of the Service will fulfil or meet any statutory role or responsibility of the Supplier; or
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be secure, free of viruses or other harmful code, uninterrupted or error free.
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(Disclaimer): The Recipient acknowledges that the Services, and the output and deliverable of the Services, may rely on data generated or provided by third parties and the Supplier is not liable or responsible for any damages, harms, errors, misunderstandings, inappropriateness, omissions or inaccuracies in the Services, or for the Recipient's reliance on the information therein, or for the operation, completeness or quality of the Services. The Recipient acknowledges that its use of the Services is strictly at its own risk.
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(Event of Default): Specified default events by or in relation to any party for the purpose of this Agreement comprise:
- (Performance default): any material breach of or material default under this Agreement resulting from failure by that party to perform any provision of this Agreement, but excluding a rectifiable breach or default, which is rectified within 30 days following written notice from any other party requiring rectification;
- (Misrepresentation): material non-compliance by that party with, or the fact of material inaccuracy of, any representation or warranty given or repeated by a party in this Agreement, or in any document delivered to any other party under or in connection with this Agreement;
- (Insolvency): cessation of payment generally by that party, or the inability of that party, to pay all its debts as and when they become due and payable;
- (Liquidation): any legal action being commenced (except where the parties agree that such legal action is in dispute), judicial order being made or resolution passed for the winding up or liquidation of that party; or
- (Litigation): the party becomes a party to material litigation of any sort which detrimentally impacts the Business.
each of the above constituting an Event of Default.
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(Default notification): Any Defaulting Party must promptly notify the default to each other party following the Defaulting Party becoming aware of an Event of Default.
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(Default Notice): Any Complying Party may at any time during any continuing Event of Default give a written notice specifying the default (Default Notice) to any Defaulting Party. The Defaulting Party may challenge the correctness of the matters in the Default Notice by giving notice to the Complying Party in writing.
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(Default enforcement): The Complying Party may, in its absolute discretion, require:
- in the event that the Defaulting Party is the Supplier, that any amount due or payable to the Defaulting Party under this Agreement be set-off against any loss or liability incurred by the Complying Party as a consequence of the Event of Default; or
- in the event that the Defaulting Party is a Recipient, that no further Services be provided to the Recipient.
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(Unilateral termination): Notwithstanding any clause of this Agreement, the Supplier may at any time and without notice terminate this Agreement with effect from the end of the then-current billing cycle and without liability to the Recipient.
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(Confidential Information): Subject to clause 34, each party must:
- treat all Confidential Information as secret and confidential and not use such Confidential Information for any unauthorised purpose;
- not disclose any Confidential Information to any person other than an employee, agent or representative who requires that information to effectively perform their respective duties, who are aware the information is confidential and who are bound to treat it as such; and
- not use any Confidential Information for its own purposes, or for the benefit of any third party, except as expressly authorised under this Agreement or with the consent of the other parties.
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(Exception): Nothing in clauses 33 and 34 prevents a party from disclosing Confidential Information:
- to comply with any relevant law or requirement of any regulatory body, and to the extent permitted, the party that is required to make the disclosure must notify the other party as soon as reasonably practicable after it becomes aware that disclosure is required; or
- to the extent that disclosure is required to give effect to the terms of this Agreement; or
- with the prior written consent of the other party.
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(Ownership): Title to, and all Intellectual Property Rights in, the Services, any website or Platform, and anything developed or delivered under this Agreement and all Underlying Systems is and remains the property of the Supplier (and its licensors).
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(Supplier development rights): Subject to clauses 33 and 34 (Confidentiality), the Supplier owns all rights, including Intellectual Property Rights, in anything developed or delivered under this Agreement, including the Services.
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(Force Majeure Event): The Supplier will not be liable for any failure to perform or delay in performing an obligation under this Agreement if the failure or delay arose from a Force Majeure Event.
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(Notice): The Supplier must give the Recipient written notice of the nature and extent of the Force Majeure Event as soon as practicable after becoming aware of it and must take all reasonable steps to mitigate the consequences of the failure or the duration of the delay.
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(Amendment): This Agreement may only be varied by written agreement between the parties from time to time.
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(Effectiveness): Any amendment of this Agreement in accordance with this clauses 39 and 40 will have full force and effect as if it were contained in the Agreement on the date that it is signed by all parties.
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(Notices): A notice required to be given under this Agreement must be in writing and delivered using any of the following means:
- hand delivery;
- courier; or
- e-mail;
in each case to the contact details set out in the "Parties" section of this Agreement or such updated or replacement address notified by a party from time to time.
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(Assignment): No party may assign, create an interest in or deal in any other way with any of its rights or obligations created under this Agreement without the prior written consent of the other parties or otherwise in accordance with the terms of this Agreement.
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(Costs): The Recipient will be responsible for all costs associated with the negotiation, entry into and execution of this Agreement.
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(Counterparts): This Agreement may be executed in any number of counterparts which:
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when taken together constitute one document; and
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nce executed, are each an effective instrument.
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(Entire Agreement): This Agreement comprises the parties' entire understanding in relation to the subject matter of this Agreement and supersedes any prior Agreement or arrangement.
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(Cumulative): The rights, remedies and powers of the parties under this Agreement are cumulative and not exclusive of any rights, remedies or powers provided to the parties by law.
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(Consent): Unless this Agreement expressly provides otherwise, any approval or consent required to be obtained under this Agreement may be withheld, given conditionally, or given unconditionally, in each case in the relevant party's absolute discretion.
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(Waiver): A right granted to one party under this Agreement may only be waived by that party giving notice in writing to the other parties. A party does not waive any right granted under this Agreement merely by not exercising that right immediately.
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(Severance): Any provision of this Agreement which is invalid or unenforceable in a particular jurisdiction, may be read down or severed to the extent of the invalidity or unenforceability in that jurisdiction only. The invalidity or unenforceability of a provision of this Agreement in one jurisdiction does not affect the:
- application of that provision in any other jurisdiction in which it is valid and enforceable; or
- remaining provisions of this Agreement.
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(Governing law and Jurisdiction): This Agreement is governed by the laws in force in the Australian Capital Territory, Australia the parties submit to the exclusive jurisdiction of the Supreme Court of the Australian Capital Territory to decide any dispute between them in relation to this Agreement.
Executed by Disaster Science Pty Ltd ACN 652 838 063 in accordance with s127 of the Corporations Act:
Date
Signature of Director
Name of Director
Executed by [Recipient TBA Commonwealth of Australia, as represented by Services Australia] ACN [Recipient ACN] in accordance with s127 of the Corporations Act:
Date
Signature of Director
Name of Director
| Services | Service Description |
|---|---|
| Data and API Services | Provision of services which are data related in nature and agreed to by the parties from time to time. |
| Technology Services | Provision of services which are technological in nature and agreed to by the parties from time to time. |
| Software Development Services | Provision of services which are software related in nature and agreed to by the parties from time to time. |
| Support Services | Provision of services which are technological support services in nature and agreed to by the parties from time to time. |
| Assorted Services | Provision of any other services incurred by the Supplier which are not contemplated elsewhere in this Schedule 1 and agreed to by the parties from time to time. |
Permitted as per Proposal to Services Australia