This Hemisphere Software and Data Licence Agreement (Agreement) is a binding agreement between Hemisphere Digital Pty Ltd ABN 35 601 123 522 of Bay 8, 6 Middlemiss Street, Lavender Bay, 2060 NSW, Australia (Hemisphere Digital) and you, Hemisphere Digital's client (Client) that is purchasing the Licence to access and use the Service on terms and conditions of this Agreement.
By clicking on the “Accept” button, you agree to be bound by this Agreement for the duration of the Term set out in the Subscription Package and that you will use the Service only in accordance with this Agreement and with all applicable laws. If you are entering into this Agreement on behalf of an entity, such as the company you work for, then you represent and warrant to Hemisphere Digital that you have the legal authority to enter into this Agreement on behalf of the Client and to bind the Client to this Agreement.
- 1. LICENCE
- (a) Subject to the terms and conditions of this Agreement, Hemisphere Digital grants the Client and each Authorised User a non-exclusive, non-transferable, non-assignable, non-sublicensable, revocable limited licence (Licence), during the Term to access and use the Service, the Documentation and the Outputs solely for the Approved Purpose.
- (b) If the Client wishes to expand the scope or terms of the Licence in any respect, the Client must obtain Hemisphere Digital's prior written consent and Hemisphere Digital reserves the right to charge the Client additional Fees agreed with the Client.
- The Client will be fully responsible for the use of the Service, the Documentation and the Outputs by each Authorised User and any failure of an Authorised User to comply with the terms of this Agreement or any law, regulation and standard that apply to such use.
- The Client acknowledges that Hemisphere Digital may be required to comply with terms and conditions imposed by the owners of any Third Party Libraries, Data Sets and Platforms. The Client undertakes to enter into, comply with, and ensure compliance by the Authorised Users with, any terms and conditions notified by Hemisphere Digital in relation to such Third Party Libraries, Data Sets and Platforms from time to time.
- 2. RESTRICTIONS
The Client must not and must procure that Authorised Users and End Users do not:
- (a) use the Service, the Documentation or any Output for any purpose other than for the Approved Purpose, or otherwise permit access to the Service, any Documentation or any Output by any other person;
- (b) decompile, disassemble, reverse engineer or otherwise attempt to derive, reconstruct, identify or discover any source code, underlying ideas, or algorithms, of any aspect of the Service by any means;
- (c) decompile, reverse engineer or otherwise attempt to re-identify any Data Set or Output by using any method, including, but not limited to, merging external data with an Output;
- (d) attempt to identify any individual, their behaviour, or the location of any individual device in connection with a Data Set or Output for any reason, including advertising, targeting, or attribution or individuals based on visits to any point of interest;
- (e) modify or alter the Service or any Documentation;
- (f) sell, resell, sublicense, transfer, assign, rent, distribute or otherwise commercially exploit or make available the Service, any Documentation or any Output or any data which is substantially similar or substantially identical to an Output, to any third party, except as permitted by this Agreement;
- (g) interfere in any manner with the Service, including by uploading any virus, worm, Trojan horse, Easter egg, time bomb, spyware, or other computer code, file or program that is potentially harmful or invasive, or may or is intended to damage or hijack the operation of, or to monitor the use of, any hardware, software or equipment;
- (h) access or attempt to access any data on the Service that is not owned by, or provided on behalf of, the relevant party without the authorisation of the owner of that data;
- (i) copy or reproduce the Service, any Output or Data Set by any means or in any form without Hemisphere Digital 's prior written consent;
- (j) disclose, attribute in any way, any of Hemisphere Digital's licensors as the source of any Data Set comprising an Output, other than in connection with the Approved Purpose;
- (k) remove, alter or obscure any identification, copyright, trademark or other proprietary notices, labels or marks of Hemisphere Digital or its affiliates, partners, suppliers or licensors on or in the Service, any Output or any Documentation;
- (l) Provide, publish or resell an Output or any data obtained as a result of using the Service or any Output, in any form, to any third party user, unless otherwise agreed in writing by Hemisphere Digital;
- (m) disclose an Output to any person if such use or disclosure would be inconsistent with the obligations imposed under the Applicable Privacy and Data Protection Laws or this Agreement;
- (n) use an Output:
- (i) for a purpose other than the Approved Purpose or after expiry or termination of this Agreement; or
- (ii) to perform any illegal, dishonest or fraudulent act, to damage or injure a third party, or to infringe privacy rights of any person or entity;
- (o) submit or transmit through the Service any material, or otherwise engage in any conduct that is:
- (i) contrary to law, defamatory or is contrary to moral standards; or
- (ii) victimises or degrades, or is threatening or harassing to any individual or group of individuals;
- (p) infringe any third party's Intellectual Property Rights;
- (q) breach any laws and regulations that apply to the Client's business and data, including laws, regulations and industry standards concerning privacy and data protection in connection with access to or use of the Service; or
- (r) permit, encourage or take any action to facilitate any person to do any of the foregoing.
- 3. MODIFICATIONS
- From time-to-time Hemisphere Digital may, but is under no obligation to, provide Modifications. Any such Modification will become part of the Service and the Authorised Users' rights to use the Modification will be governed by the terms of this Agreement. Any reference to the Service in this Agreement will include all Modifications from time to time. Hemisphere Digital will apply its best endeavours to notify the Client in the event of significant Modifications.
- 4. ADDITIONAL SERVICES
- (a) During the Term, the Client may request Hemisphere Digital to perform certain additional services, including configuration services, for the Client. Hemisphere Digital's obligation to perform such services will become binding upon the execution by both Hemisphere Digital and the Client of a Statement of Work.
- (b) Each Statement of Work will be governed by and subject to the terms of this Agreement. Unless expressly authorised by this Agreement, or expressly set forth in a Statement of Work, terms and conditions contained in a Statement of Work which purport to vary this Agreement will be of no effect. Any changes or modifications made to any individual Statement of Work must be made in writing and signed by each party before they will become binding.
- (c) Unless validly terminated earlier in accordance with this Agreement, each Statement of Work will remain in force for the term specified in that Statement of Work or, if no term is specified in that Statement of Work, the longer of the remaining term of this Agreement and the date of completion of any services set forth in that Statement of Work.
- 5. SERVICE AVAILABILITY
- (a) The Client acknowledges and agrees that there will be circumstances where the Service may be unavailable or its availability may be limited, including (without limitation):
- (i) due to routine or emergency maintenance; or
- (ii) updates, upgrades or changes and operational procedures; or
- (iii) technical malfunctions of the Client's underlying software, equipment, services or infrastructure (e.g., telecommunications connectivity, network congestion or delays) or any third-party provider in connection with the provision of the Service.
- (b) Hemisphere Digital may temporarily restrict or suspend the Service Availability to the Authorised Users if, in Hemisphere Digital's reasonable opinion:
- (i) the Client breaches a term or condition of this Agreement, including its obligation to pay the Fees to Hemisphere Digital as and when they are due;
- (ii) at any time the Service is misused or used by an unauthorised user;
- (iii) limitation or suspension is necessary for reasons of public safety, security or maintenance of the Service, inoperability, data protection or to perform other work that Hemisphere Digital deems necessary for operational or technical reasons;
- (iv) as determined by applicable law or regulation; or
- (v) in accordance with any agreement or directive or prohibition by Third Party Libraries, Data Sets and Platforms.
- (c) In order to provide the Service, Hemisphere Digital utilises or links to Third Party Libraries, Data Sets and Platforms. The Client acknowledges and agrees that Hemisphere Digital has no control over and is not responsible or liable for:
- (i) the availability and accuracy of such Third Party Libraries, Data Sets and Platforms; or
- (ii) the Client's use of any Third Party Libraries, Data Sets and Platforms.
- 6. HOSTING, MAINTENANCE AND SUPPORT
- (a) The hosting facility of the Service will be operated by a third-party cloud service provider. Hemisphere Digital will use reasonable efforts to maintain the availability of the Service to the Client, however, does not provide any guarantee as to up-time or availability in respect of the Service other than as expressly set out in this Agreement.
- (b) Hemisphere Digital will provide technical support in connection with the Authorised User's use of the Service during Support Hours. An Authorised User may initiate a helpdesk ticket during Support Hours by emailing firstname.lastname@example.org.
- (c) Hemisphere Digital will use commercially reasonable efforts to respond to all helpdesk tickets within two (2) business days. Hemisphere Digital will provide the support services via email only and nothing in this Agreement requires Hemisphere Digital to provide onsite support other than as expressly agreed in writing between the parties.
- (d) The Client may request in writing that Hemisphere Digital provide an enhanced level of Support. Any agreement for Hemisphere Digital to provide enhanced Support will be subject to a separate support agreement.
- 7. OUTPUTS
- (a) The Client acknowledges and agrees that:
- (i) Hemisphere Digital is the licensee of the Data Sets from which the Outputs are derived.
- (ii) Hemisphere Digital's licensors may impose additional terms and conditions in respect of the use of their Data Sets and Hemisphere Digital may impose such additional terms on the Client to the extent that an Output is derived from any part of an affected Data Set; and
- (iii) Hemisphere Digital may change Data Set providers from time to time in its absolute discretion, (Data Set Change), in which case Hemisphere Digital will give the Client at least seven (7) days advance written notice of such change and any corresponding difference in Fees and will use its best efforts and commercially reasonable endeavours to maintain consistency, functionality and, to extent possible, quality of the Outputs.
- (b) If there is any difference in Fees resulting from the Data Set Change, Hemisphere Digital will adjust- the pro rata portion of Fees applicable to any Data Set which were paid for in advance but not delivered, against the Fees payable for the following month.
- (c) The Client acknowledges and agrees that:
- (i) Hemisphere Digital licenses data from third party licensors and whilst Hemisphere Digital takes reasonable and appropriate efforts to ensure the data is free of error, Hemisphere Digital does not warrant the accuracy, adequacy or completeness of the information; and
- (ii) the Client assumes all responsibility for determining whether the Hemisphere Platform or the Output or the information generated thereby is accurate or sufficient for Licensee's purposes the Client; and
- (iii) the Client and relies on the Outputs or the information generated entirely at its own risk; and
- (iv) Hemisphere Digital is not liable for the results or the outcome of the use of any Output or the information generated by the Client.
- 8. FEES
- (a) During the Term, the Client will pay to Hemisphere Digital the Fees together with any taxes within thirty (30) days of the date of invoice, unless otherwise specified in the Subscription Package or a Statement of Work. Except as expressly set forth to the contrary in the Subscription Package or a Statement of Work, all Fees are non- refundable.
- (b) If the Client fails to pay an invoice issued by Hemisphere Digital in accordance with this Agreement, Hemisphere Digital may charge the Client interest on the outstanding portion of any invoice which remains due and unpaid at the lower of 3% per annum above the Reserve Bank of Australia Target 'Cash Rate', or the maximum permitted by law. Interest will accrue daily on and from the day following the due date for payment until the date on which the principal amount and any interest calculated in accordance with this clause is paid in full. In addition, Hemisphere Digital may, at its discretion, suspend the access of the Client and the Authorised Users to the Service or reduce it in a proportion or manner determined by Hemisphere Digital in its absolute discretion, until all overdue amounts including interest accruing on those amounts under this clause are fully paid.
- (c) Subject to clause 7 , Hemisphere Digital may change the Fees for the Service from time to time and will communicate any changes in Fees to the Client at least thirty (30) days in advance.
- (d) The Client has a right to reject the change and terminate this Agreement by giving Hemisphere Digital written notice prior to the change taking effect. If the Client terminates this Agreement in accordance with this clause 8(d) , Hemisphere Digital will refund the Client any prepaid Fees for the Service, covering the remainder of the Term after the effective date of such termination.
- (e) The Client will be deemed to have agreed to the new Fees if Hemisphere Digital does not receive the Client's written notice on termination of this Agreement in accordance with clause 8(d) and the Client continues to use the Service after the expiry of the advance notice from Hemisphere Digital.
- (f) Hemisphere Digital reserves the right, in its sole discretion, and unless specified to the contrary in the Subscription Package, to charge fees for receiving payments from the Client including, but not limited to, merchant service fees and fees associated with collection of card payments.
- 9. GST
- (a) In this clause 9, a word or expression defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) (GST Act) which is not otherwise defined in this Agreement has the meaning given to it in the GST Act.
- (b) All consideration provided under this Agreement, including the Fees, is exclusive of GST and other taxes, unless it is specifically expressed to be GST inclusive. If a party (Supplier) makes a taxable supply to another party (Recipient) under or in connection with this Agreement in respect of which GST is payable, the Recipient must pay the Supplier an additional amount equal to the GST payable on the supply (unless the consideration for the taxable supply was specified to include GST). The additional amount must be paid by the Recipient by the later of:
- (i) the date when any consideration for the taxable supply is first paid or provided; and
- (ii) the date when the Supplier issues a tax invoice to the Recipient.
- (c) If an adjustment event varies the amount of GST payable by a Supplier under this Agreement, the Supplier must adjust the amount payable by the Recipient to take account of the adjustment event. Any resulting payment must be paid by the Supplier to the Recipient, or the Recipient to the Supplier (as appropriate) within ten (10) business days of the Supplier becoming aware of the adjustment event. Any payment under this clause is deemed to be an increase or decrease of the additional amount payable under clause 9(b) .
- (d) If the GST payable in relation to a supply is less than the amount the Recipient has paid the Supplier under clause 9(b) , the Supplier is only obligated to pay a refund of GST to the Recipient to the extent the Supplier receives a refund of that GST from the Australian Taxation Office.
- (e) Subject to an express provision in this Agreement to the contrary, any payment, reimbursement or indemnity required to be made to a party (Payee) under this Agreement which is calculated by reference to an amount paid or payable by the Payee to a third party (Outgoing) will be calculated by reference to that Outgoing inclusive of GST, less the amount of any input tax credit which the Payee is entitled to claim on that Outgoing.
- (f) If part of a supply is a separate supply under GST law, that part is a separate supply for the purpose of this clause.
- (g) Where the Supplier, Recipient or Payee in this clause 9 is a member of a GST group, a reference to the Supplier, Recipient or Payee includes the representative member of the GST group.
- 10. DATA AND CONTENT
- (a) The Client is solely responsible for all of Client Data, including in respect of the accuracy, reliability, completeness, integrity, compliance with Applicable Privacy and Data Protection Laws and the Client's rights to use the Client Data, including rights in relation to:
- (i) any Intellectual Property Rights of any third party; and
- (ii) any Personal Information.
- (b) The Client must ensure that the Client has all necessary rights, approvals and consents required for Hemisphere Digital to collect, use, store, copy, transfer and modify the Client Data as required for the Service to be used by the Authorised Users in accordance with this Agreement. The Client indemnifies Hemisphere Digital for any loss that Hemisphere Digital may suffer in connection with such activities directly relating to Hemisphere Digital's use of the Client Data for these purposes to the maximum extent permitted by law.
- (c) Hemisphere Digital will take all commercially reasonable measures in accordance with industry practice and applicable law to preserve the integrity of the Client Data and to prevent any material corruption or loss of the Client Data. Except as otherwise expressly set out in this Agreement or required by law, Hemisphere Digital will not in any circumstances be responsible or liable for any loss of the Client Data.
- (d) The Intellectual Property Rights, title and any other interest in the Client Data is permanently and irrevocably vested in the Client. The Client grants to Hemisphere Digital a non-exclusive, royalty-free, worldwide licence during the Term to access, process, copy, and use the Client Data in any way solely in conjunction with the performance of its obligations in connection with this Agreement.
- (e) Hemisphere Digital will have the right to use anonymised, aggregated usage data derived from the use of the Service by the Client which must not include any Personal Information for marketing, research and other lawful purposes.
- (f) To the extent that any reformatting of the Client Data in connection with the performance of the Service constitutes a modification or derivative work, the Client grants to Hemisphere Digital a right to make modifications and derivative works.
- (g) Hemisphere Digital will have the right (but not the obligation) in its sole discretion to reject, remove or delete any of the Client Data that violates any of the terms of this Agreement or any applicable law or regulation, or is, in the sole discretion of Hemisphere Digital, inappropriate, unlawful or not conforming with Hemisphere Digital's standards or policies. Hemisphere Digital will notify the Client as soon as practicable following any such rejection, removal or deletion.
- 11. INTELLECTUAL PROPERTY
- (a) Each party will continue to exclusively own all Intellectual Property Rights it owns as at the date of this Agreement, or which are developed or created independently of this Agreement (Background IPR).
- (b) The Client acknowledges and agrees that all right, title and interest in and to:
- (i) the Service, the Documentation and all Modifications thereto;
- (ii) the Data Sets and each Output;
- (iii) any software, applications, inventions or other technology developed in connection with this Agreement;
- (iv) any additional services provided under s Statement of Work and any materials, deliverables or developments in connection with the provision of those services; and
- (v) all Intellectual Property Rights related to any of the foregoing, is owned exclusively by Hemisphere Digital or its licensors, as the case may be.
- (c) The Client agrees that the Service, the Documentation and the Outputs are licenced, not sold to either the Client or the Authorised Users and that neither the Client nor any of the Authorised Users is granted any ownership of the Service, the Documentation or the Outputs including any Intellectual Property Rights, other than the Licence granted to the Client and the Authorised Users under this Agreement.
- (d) The Client may choose, at its sole discretion, to submit Feedback. Hemisphere Digital in connection with any of its products or services may, without notification and without consultation with the Client, freely use, copy, disclose, license, distribute and exploit any Feedback in any manner without any obligation, royalty or restriction based on intellectual property rights or otherwise. No Feedback will be considered the Client's Confidential Information, and nothing in this Agreement limits Hemisphere Digital's right to independently use, develop, evaluate, enhance, or market products or services, whether incorporating any such Feedback or otherwise.
- (e) The Client grants Hemisphere Digital a non-exclusive, transferrable, sublicensable, royalty free licence to utilise, copy, modify and prepare derivative works of the Client's Background IPR and Client Data solely in connection with the provision of the Service to the Client under this Agreement, including provision of the Outputs.
- (f) Except as expressly set forth in this Agreement, neither party grants to the other any right, title or interest in any of its Intellectual Property Rights or the Intellectual Property Rights of its licensors, and all implied rights and licences are hereby expressly excluded.
- 12. PRIVACY
- (a) By using the Service, the Authorised Users may provide Hemisphere Digital with Personal Information. This may occur, for example, if Hemisphere Digital records information about the Authorised Users and the use of the Service, or if the Authorised Users enter information relating to third parties while using the Service. Where the Authorised Users provide Hemisphere Digital with Personal Information, the Client must ensure that:
- (i) the Authorised Users are permitted to provide Hemisphere Digital with that Personal Information;
- (ii) the Authorised Users have made any disclosures or obtained any consents necessary under any applicable privacy law and will comply with all applicable legal obligations relating to privacy, security, integrity, and confidentiality of data collected from a third party; and
- (iii) the Client will, at a minimum, implement and maintain appropriate administrative, technical, and physical safeguards reasonably designed to ensure against any anticipated threats or hazards to the security or integrity of the Personal Information and protect against unauthorised access to or use of the Personal Information.
- (c) By using the Service and as part of this Agreement, the Client consents to Hemisphere Digital using e-mail, fax or other means of communication to provide the Client with information in respect of this Agreement.
- 13. ACCESS AND SECURITY
- (a) The Client must ensure that:
- (i) only Authorised Users access the Service using a unique user identification name and password to access to and use the Service (User ID); and
- (ii) each Authorised User maintains the safety and security of their User ID. The Client must maintain a current list of all Authorised Users and provide it to Hemisphere Digital on request.
- (b) Hemisphere Digital reserves the right to monitor the use of the Service by Authorised Users to ensure compliance with this Agreement and prevent unauthorised use or misuse of the Service. Such monitoring may include, but is not limited to, determining whether or not the Service is accessed under the account from multiple computers as well as monitoring whether the use exceeds the number of Authorised Users.
- (c) The Client must notify Hemisphere Digital immediately if any User ID is lost, stolen or compromised or the Client becomes aware of any unauthorised use of the User ID. Hemisphere Digital may temporarily restrict or suspend access to the Service through the notified User ID until a new User ID is issued. The parties agree to work together to minimise the impact and consequences of the unauthorised use and to recommence access to the Service as expeditiously as possible.
- (d) The Client acknowledges that the Client is fully responsible of all acts or omissions of the Authorised Users and for all liabilities incurred through use of any User ID and that any acts or omissions under a User ID will be deemed to have been undertaken by the Client. Hemisphere Digital will not be responsible for any liability to the Client arising out of or in connection with such acts or omissions.
- 14. TERM AND TERMINATION
- (a) This Agreement commences on its acceptance by you and expires at the conclusion of the Term, unless terminated earlier in accordance with its terms.
- (b) Where the Client has agreed to an automatic renewal of the Subscription Package, the Term shall automatically renew under the same terms agreed in the Subscription Package unless the Client gives Hemisphere Digital a written notice of termination of the Agreement at least fourteen (14) days prior to the end of the expiring Term.
- (c) Without limiting the generality of any other clause of this Agreement, any party (Terminating Party) may terminate this Agreement and any Statement of Work with immediate effect by written notice to the other party if the other party:
- (i) is in breach of any material term of this Agreement and such breach is not remedied within fourteen (14) days of written notice by the Terminating Party; or
- (ii) is wound up, has an administrator appointed to it, a receiver appointed to any of its assets, enters into any arrangement, assignment or composition with any of its creditors or any of them or becomes insolvent; or
- (iii) ceases to carry on its business.
- (d) Hemisphere Digital may terminate this Agreement and any Statement of Work immediately by written notice to the Client if the Client is in breach any of clauses 1, 2, 10, 11, 12, 13, 18 or 19.2(a) .
- (e) Upon expiration or termination of this Agreement for any reason:
- (i) the Client must procure that each Authorised User immediately stops using the Service;
- (ii) any amounts owing to Hemisphere Digital under this Agreement before such termination or expiration will be immediately due and payable;
- (iii) all rights and licences granted to the Client and Authorised Users under this Agreement will immediately terminate and Hemisphere Digital will cease making the Service available to the Client and the Authorised Users;
- (iv) all documents and materials containing Confidential Information must be, at no cost to the providing party, returned to the providing party within thirty (30) days after termination or expiration or destroyed at the request of the providing party;
- (v) the Client will destroy, or upon Hemisphere Digital’s request, return to Hemisphere Digital at no cost to Hemisphere Digital, any and all Outputs, no later than ten (10) days after such termination or expiration;
- (vi) Hemisphere Digital reserves the right, in its sole discretion, to delete the Client Data after termination of this Agreement. It is the sole responsibility of the Client to retain records of the Client Data; and
- (vii) upon request, each party will certify in writing to the other party that it has met its obligations under this clause 14 .
- (f) In the event of termination of this Agreement by the Client in accordance with clause 14(c) , Hemisphere Digital will refund the Client any prepaid Fees for the Service, covering the remainder of the Term after the effective date of such termination.
- (g) Clauses 2, 9, 10, 11(e), 14(e), 14(f), 14(g), 15 to 18 and all other clauses intended by their nature to survive termination of this Agreement will survive any termination of this Agreement.
- 15. DISCLAIMER
- (a) Nothing in this Agreement excludes, restricts or modifies any guarantee, condition, warranty, right or remedy implied or imposed by legislation which cannot lawfully be excluded, restricted or modified (each a Non-Excludable Term). Such legislation includes the Competition and Consumer Act 2010 (Cth) which contains guarantees that protect the purchasers of goods or services in certain circumstances.
- (b) Subject to Hemisphere Digital’s obligations under the Non-Excludable Terms and to the fullest extent permitted by law, Hemisphere Digital provides the Service and the Outputs ‘as is’ and expressly excludes all terms, warranties or conditions of any kind with respect to the services under this Agreement and a Statement of Work, whether express, implied, statutory or arising out of course of performance, course of dealing or usage of trade.
- (c) Other than as expressly set forth in this Agreement or a Statement of Work, Hemisphere Digital does not guarantee any specific results from the use of the Service or the Outputs and excludes all warranties that the Service and the Outputs will be uninterrupted, free of viruses or other harmful code, timely, secure or error- free or that the Service or an Output will meet the Client’s requirements.
- 16. LIMITATION OF LIABILITY
- (a) Subject to the obligations of Hemisphere Digital under the Non-Excludable Terms, to the maximum extent permitted by applicable law, in no event shall either party be liable to the other for incidental, consequential, punitive, special or indirect damages or loss of any type or kind arising out of or in connection with this Agreement, however caused, whether from breach of contract, tort (including negligence), or any other legal cause of action, and whether or not the party has been advised of the possibility of such damages or loss.
- (b) Subject to the obligations of Hemisphere Digital under the Non-Excludable Terms and to the fullest extent permissible by law, in no event will Hemisphere Digital’s aggregate liability for all damages exceed the amount of Fees paid by the Client under this Agreement during the period of 3 months prior to the event giving rise to such liability.
- (c) To the fullest extent permitted by law, the liability of Hemisphere Digital for breach of a Non-Excludable Term is limited to one or more of the following, at Hemisphere Digital’s sole option:
- (i) if the breach relates to goods:
- (A) the replacement of the goods or the supply of equivalent goods;
- (B) the repair of such goods;
- (C) the payment of the cost of replacing the goods or of acquiring equivalent goods; or
- (D) the payment of the cost of having the goods repaired; and
- (i) if the breach relates to goods:
- (A) the supplying of the services again; or
- (B) the payment of the cost of having the services supplied again.
- 17. INDEMINITY
- (a) The Client must indemnify, defend and hold harmless Hemisphere Digital, its directors, officers, employees, agents and contractors, from any and all liabilities, losses, damages, expenses and costs, including legal fees on a full indemnity basis, in connection with any of the following:
- (i) any breach of this Agreement by the Client or any Authorised User;
- (ii) the Client’s negligent acts or omissions or negligent acts or omissions of any Authorised User;
- (iii) the use or misuse of login credentials of any Authorised User under this Agreement;
- (iv) use or misuse of the Service, any Output or Data Set by the Client or any Authorised User, including any third-party claims made in connection with, or arising out of, use or misuse of the Service, any Output or Data Set by the Client or any Authorised User; and
- (v) any bona fide claim in writing that use of Client Data by Hemisphere Digital infringes the Intellectual Property Rights of a third party.
- (b) Subject to this Agreement, Hemisphere Digital must indemnify, defend and hold the Client and the Authorised Users harmless from and against any and all loss, damages, and liability (including attorney's fees) of any kind arising from or in connection with Hemisphere Digital's breach of this Agreement.
- 18. CONFIDENTIALITY
- (a) Each party agrees to keep confidential, and not to use or disclose, other than as permitted by this Agreement, any Confidential Information of the other party. The Client must ensure that each Authorised User complies with the obligations of confidence imposed on the Client by this clause 18 .
- (b) These obligations of confidence extend to Confidential Information provided to or obtained by a party and each Authorised User prior to the effective date of this Agreement.
- (c) These obligations of confidence do not apply to Confidential Information:
- (i) that is in the public domain otherwise than as a result of a breach of this Agreement or other obligation of confidence; or
- (ii) that is already known by, or rightfully received, or independently developed, by the recipient free of any obligation of confidence.
- (d) Notwithstanding anything to the contrary in this Agreement, either party may disclose Confidential Information of the other party where such Confidential Information:
- (i) is required to be disclosed by applicable law, by a court or governmental agency, provided that, prior to disclosing any such Confidential Information, the party making the disclosure has promptly notified the other party in writing to allow that party to take all reasonable steps to maintain such Confidential Information in confidence; or
- (ii) is required to be disclosed in accordance with the rules of any stock exchange upon which the securities of the party making the disclosure are listed.
- (e) On request by the party disclosing the Confidential Information the party receiving the Confidential Information must:
- (i) promptly return or destroy (at the option of the disclosing party) the Confidential Information and any copy of it; and
- (ii) if required by the disclosing party, certify in writing that it has returned or destroyed all the Confidential Information.
- (f) The party receiving the Confidential Information acknowledges that a breach by such party of any of its obligations under this Agreement would irreparably harm the party disclosing the Confidential Information and damages would not be an adequate remedy for any such breach.
- (g) If the party receiving the Confidential Information breaches or threatens to breach this Agreement, the party disclosing the Confidential Information will be entitled to seek equitable remedies (including injunctive relief or specific performance as a remedy) in addition to other available relief without proof of actual or special damage.
- 19. GENERAL PROVISIONS
19.1 Independent contractors
- The parties are independent contractors with respect to each other, and nothing in this Agreement shall be construed as creating an employer-employee relationship, a partnership, agency relationship or a joint venture between the parties.
- (a) The Client may not assign this Agreement (by operation of law or otherwise) without Hemisphere Digital’s prior written consent (which consent Hemisphere Digital may grant or withhold in its sole discretion).
- (b) Hemisphere Digital may assign this Agreement, and the rights and obligations in this Agreement, upon written notice to the Client.
- This Agreement constitutes the entire agreement between the parties with respect to the subject matter and will supersede all previous negotiations, commitments, and writing. It may not be released, discharged or modified except by an instrument in writing signed by each party.
- In the event that any provision of this Agreement conflicts with governing law or if any provision is held to be null, void or otherwise ineffective or invalid by a court of competent jurisdiction, such provision will be deemed to be restated to reflect as nearly as possible the original intentions of the parties in accordance with applicable law and the remaining terms, provisions, covenants and restrictions of this Agreement will remain in full force and effect.
- The rights to use the Service under this Agreement are personal and non-exclusive, and nothing will prevent Hemisphere Digital from providing the Service or any other product, software, goods or services to any third party.
- This Agreement, and any disputes arising out of or in connection with this Agreement, will be governed by and construed in accordance with the laws of New South Wales, Australia. The parties unconditionally submit to the non-exclusive jurisdiction of the courts located in New South Wales, Australia to adjudicate any disputes arising out of or in connection with this Agreement.
- No waiver of any breach of any provision of this Agreement will constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions hereof, and no waiver will be effective unless made in writing and signed by an authorised representative of the waiving party.
- Any dispute arising in connection with this Agreement which cannot be settled by negotiation between the parties or their representatives may be submitted to arbitration in accordance with the Rules for the Conduct of Commercial Arbitrations for the time being of the Institute of Arbitrators, Australia. During such arbitration, both parties may be represented by a duly qualified legal practitioner.
- Any express statement of a right of either party under this Agreement is without prejudice to any other right of that party expressly stated in this Agreement or arising at law.
- (a) Neither party shall be liable for any delay or failure to perform its obligations pursuant to this Agreement, if such failure or delay is due a Force Majeure Event.
- (b) The party to this Agreement seeking to rely on a circumstance of Force Majeure Event must immediately notify the other party of any anticipated delay due to Force Majeure Event. The performance of the party's obligations under this Agreement will be suspended for the period of the delay due to Force Majeure Event.
- (c) If the period of the delay due to Force Majeure Event exceeds sixty (60) days, the party for whose benefit an obligation remains unperformed may immediately terminate this Agreement on providing notice to the other party.
- 20. DEFINITIONS AND INTERPRETATION
Applicable Privacy and Data Protection Laws means the following:
- (a) the privacy, security, and data protection laws, rules, and regulations of any jurisdiction which apply to the collection, storage, use or disclosure of the Personal Information under this Agreement, and all then-current industry standards, guidelines, and practices with respect to privacy, security, and data protection; and
- (b) the applicable privacy policies of either party as well as policies and guidelines
applicable to any of the foregoing provided by one party to the other in written form
from time to time.
Approved Purpose means the internal business purposes of the Client, including the development of information and reports for the Clients End Users , but excludes the on-sale, republishing or other commercialisation of Outputs, or insights or data derived from the Client’s use of the Service and Outputs, unless otherwise agreed by Hemisphere Digital in writing.
Authorised User means an individual who is authorised by the Client to be a registered user of the Service on the terms set out in this Agreement and who is the Client’s employee or officer or an independent contractor who provides services to the Client.
Background IPR has the meaning given to it in clause 11(a) . Client Data means any data or information that Authorised Users input in the course of using the Service, but does not include anonymised, aggregated usage data derived from the use of the Service by the Client or the Authorised Users.
Confidential Information means, in relation to a party, any information:
- (a) regarding the business, technology or affairs of that party;
- (b) regarding clients, customers, employees, contractors of, or other persons doing business with, that party;
- (c) in the case of Hemisphere Digital, information and details regarding the function, purpose and/or operation of the Service and of the contents of the Documentation and other explanatory material supplied by Hemisphere Digital;
- (d) in the case of the Client, Client Data;
- (e) which is by its nature confidential or which is designated as confidential by that party;
- (f) which the other party knows, or ought to know, is confidential; or
- (g) the commercial arrangements between the parties.
- (a) headings are for convenience and ease of reference only, are not part of this Agreement and shall not be relevant to or affect the meaning or interpretation of this Agreement;
- (b) the singular includes the plural and vice versa, and a gender includes other genders;
- (c) another grammatical form or a defined word or expression has a corresponding meaning;
- (d) a reference to a clause, paragraph or a schedule is to a clause, paragraph or schedule of this Agreement, and a reference to this Agreement includes any schedule;
- (e) a reference to a document or instrument includes the document or instrument as novated, altered, supplemented or replaced from time to time;
- (f) a reference to a party is to a party to this Agreement, and a reference to a document includes the party’s executors, administrators, successors and permitted assigns and substitutes;
- (g) a reference to a person includes a natural person, partnership, body corporate, association, governmental or local authority or agency or other entity;
- (h) a reference to a statute, ordinance, code or other law includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements of any of them;
- (i) the meaning of general words is not limited by specific examples introduced by including, for example or similar expressions; and
- (j) a rule of construction does not apply to the disadvantage of a party because the party was responsible for the preparation of this Agreement or any part of it.
Data Set means a data set provided by a third party licensor to Hemisphere Digital, including any updates in respect of such data sets.
Documentation means user guides and methodologies in respect of the Service provided by Hemisphere Digital to the Client to facilitate the use of the Service.
End User means an employee or officer or an independent contractor who provides services to the Client and that uses any Output from the Service.
Feedback means without limitation, comments, questions, ideas, suggestions, the possible creation, modification, correction, improvement or enhancement of the Service, Data Sets, Outputs and the Documentation.
Fees means all fees and charges payable to Hemisphere Digital under this Agreement, which are set out in the Subscription Package or otherwise agreed between the parties.
Force Majeure Event means an act, event, non-happening, omission, accident or act of God beyond reasonable control of either party, including strikes, civil strife’s, riots, wars, threats of or preparation for war, fire explosion, storm, flood, earthquake, subsidence, epidemics or failure of plant.
Intellectual Property Rights includes industrial and intellectual property rights both in Australia and throughout the world, including any patents, copyright, trade marks or service marks, designs, business names, commercial names and designations, circuit layouts, source code, object code, database rights, rights in relation to Confidential Information and trade secrets, whether or not registered or registrable and any right to apply for registration or grant of any of the above.
Licence has the meaning given to it in clause 1(a) .
Modification means any update, change, addition, replacement or deletion of functions, features, performance or other characteristics of the Service.
Non-Excludable Term has the meaning given to it in clause 15(a) .
Output means any data or content derived from any combination of Data Sets, whether with other Data Sets or Client Data, that is made available or delivered to the Client through the Service.
Personal Information means personal information or sensitive information as those terms are defined in the Privacy Act 1988 (Cth).
Service means Hemisphere Digital’s cloud-based data analytics technology solution ‘Hemisphere’ which enables distribution and performance of data analytics and corresponding insights on the Client’s own data sources.
Service Availability means the Service is generally available during business hours, except for any and all planned downtime, maintenance windows, where agreed changes are made or in the event of unforeseen circumstances that are beyond Hemisphere Digital’s reasonable control.
Statement of Work means a statement or work or other such executed document which references this Agreement, whereby the Client engages Hemisphere Digital to perform certain additional services to the Client.
Subscription Package means a document executed between Hemisphere Digital and the Client or electronically accepted by the Client for the specific time period that references this Agreement, details the Service to be provided by Hemisphere Digital, the Fees, specific terms, variations, upgrades, or renewals, or other options relevant to the Service.
Support Hours means Monday to Friday during the hours of 9:00 am through 5:00 pm Australian Eastern Standard Time, with the exclusion of Public Holidays in New South Wales, Australia.
Term means the duration of this Agreement in accordance with the Subscription Package.
Terminating Party has the meaning given to it in clause 14(c) .
Third Party Libraries, Data Sets and Platforms means websites, software, applications, extensions, data and other resources licensed by Hemisphere Digital from a third party.
In this Agreement, except where the context requires otherwise: