Terms and conditions for provision of products and services set out hereinafter and (if applicable) terms and conditions for provision of software subscription, SaaS or term licenses purchased from Data Phase together with any other terms, included in each relevant Order document, comprise terms (“Terms“) that govern the provision of Product(s) and Service(s) by Data Phase Pty Ltd (hereinafter Data Phase) to you, the Customer (“You”, “Customer”).
Use of Data Phase’ products and/or services signifies your acceptance of the Terms.
NOTE: If you do not agree to the Terms, do not proceed or use Products and Services supplied by Data Phase.
Term shall become effective upon the date it is accepted by Data Phase and the Customer, or when Data Phase delivers Product or Services, whichever is earliest. Unless otherwise specified in any other relevant Order or terminated by either party by giving at least 30 days written notice, Terms are effective for a period of 12 months. By mutual agreement in writing, the period can be extended.
Mean hardware, software and software as a service (SaaS) which are supplied or resold by Data Phase.
Means an accepted Statement of Work (SoW), Quote, Order Form or other document issued by Data Phase outlining Products and/or Services with any other relevant terms and conditions.
Mean the supply of Products and services, including consulting, design, development, implementation, integration, testing, deployment to production, warranty and support work to be provided by Data Phase and as set out in any relevant Order.
Means any software, firmware, documented methodology or process, tools, object libraries, documentation or other material in whatever form, including without limitation any reports, specifications, business rules or requirements, user manuals, user guides, operations manuals, training materials and instructions, and the subject matter of any Intellectual Property Rights.
Means a specificity defined outcome of Services (or part thereof) which the Customer have requested Data Phase to provide, develop or create under any relevant Order.
- Production Environment
Means the Customers’ settings where Products and software programs are run to support business operations and where Products and software programs operate for their intended uses (by end users, where applicable).
Where there is any inconsistency between any rights or obligations under an Order relevant terms and General Terms, any rights or obligations specified in the Order shall prevail to the extent of any inconsistency.
Products are accepted on delivery. Services are accepted on completion of relevant Deliverables or, if provided on a time and materials basis, on provision of man-hours as recorded in relevant timesheets. Any defects shall be advised to Data Phase in writing, with a reasonable period of time, to allow Data Phase to remedy the same under Warranty.
- Order Charges
Unless otherwise stated in an Order, each Order document is valid for 30 days and Charges exclude delivery and installation fees. Service Charges are as per Data Phase’ prices and rates agreed in an Order. Charges for Services sourced from overseas are subject to foreign exchange rate changes. Charges commence on when Data Phase delivers Products or Services or as stated in a relevant accepted Order. Recurring license, support and/or maintenance charges are billed in advance.
- Payment Terms
Payments of invoices are due in 30 days from the receipt of a correctly rendered invoice. If the invoice is overdue by more than 45 days, Data Phase may suspend its Services and all monies for Service delivered become immediately due and payable. Overdue payments attract an interest charge of 10% per annum applied daily.
Data Phase’ invoices submitted for payments will contain the information necessary to be a tax invoice for the purposes of the GST legislation.
No termination for convenience is permitted. Either party may terminate their obligations under agreed Terms in whole or in part if:
- the other party is in breach or default of its obligations and fails to remedy the same within 30 days of written notice: or
- neither party enters any form of receivership, administration, or liquidation.
Data Phase shall not be liable for performance of Service due to any delays or inability to perform caused by circumstances or events beyond the reasonable control of Data Phase or its suppliers.
- Service Exclusions
Service exclusions include:
- Supply or service of items which are not listed in an agreed Order document.
- Warranty service for items that are not at the minimum hardware and software versions and/or configuration.
- Unless agreed otherwise:
- Upgrades and/or modifications of hardware; and
- installation of new versions or releases of software, changes to integration modules or data migrations.
- re-supply of services required due to:
- user misuse or abuse; or
- damage or errors caused by fire, smoke, heat, water, flood, storm, lightning, brownouts, electrical failure, and any other act of God; or
- use other than as per manufacturer’s instructions and recommended operating environment; or
- repairs by a third-party that has not complied with manufacturer’s or other installation or operations instructions; or
- repairs to items used in excess of rated life or Products which become unserviceable; or
- manufacturer recalls including products or parts replacement or substitution; or
- suppliers’ refusal to provide services or spares under any warranty that is assigned to Data Phase.
- Where the above exclusions apply, Data Phase at its discretion may offer to provide or continue to provide service on a chargeable time and materials basis.
- Customer Obligations
For provision of Services and assurance of Products to their specification, customer shall:
- provide full and safe access to its premises, Products and any other necessary equipment, accessories, materials, information; and
- provide timely access to competent and experienced resources; and
- conduct reviews and approvals of Deliverables as set out in a relevant Order; and
- not to use un-approved Deliverables in Production Environment; and
- be responsible for its own security and suitable protection measures of data and operating environments; and
- ensure that all work site(s) are safe and comply with all relevant occupational health and safety laws and regulations.
- Title and Risk
Property and ownership of Products delivered to the Customer is retained by Data Phase until Data Phase receives payment in full for each Product and until then, the Customer holds Products and any proceeds of sale as trustee for Data Phase. Risk passes on the delivery of Products.
- Statutory Rights
If Data Phase is in breach of a condition or warranty implied by then Consumer Law (ACL), then Data Phase’ liability, to the extent permitted by law, is limited at its option, to:
- the repair or replacement of the Products; or
- paying the cost of having the Products repaired or replaced.
- Intellectual Property Rights
Unless otherwise stated in an Order document, all Intellectual Property Rights in existing Material and data owned by Data Phase or its licensors are provided to the Customer remain with Data Phase or its Licensors. All other intellectual property rights created or developed during the course of a Service and incorporated in Deliverables shall also remain with Data Phase. Upon receipt of payment from the Customer in full for completed Deliverables as defined in a relevant Order, Data Phase will grant the Customer a non-exclusive, non-transferable license to use Data Phase owned Intellectual Property Rights that has been incorporated into these Deliverables under the relevant Order.
- Third-party Products and Services
Service may require Data Phase to obtain additional third- party products and services. Third-party products and services resold by Data Phase “as is”, non-returnable and subject to the original licensor and/or manufacturer’s specifications and warranty, including any intellectual property indemnity, support and warranty.
Data Phase will perform Services using all requisite care, skill and workmanship.
Products will be new unless otherwise is stated in an Order document. Data Phase assigns to Customer any end user warranties provided by the manufacturer. Customer assigns to Data Phase the right to claim under that manufacturer’s warranty. Data Phase does not warrant that Products are error free or will not fail in operation.
Unless an Order document expressly amends Warranties as set out hereinafter, the Warranty period commences on a Deliverable acceptance date and is the shorter of either:
- 30 days; or
- period of time that commences on the Deliverable acceptance date and ends on the day the Deliverable is deployed in the Customer Production Environment.
- Limit of Liability
Notwithstanding any other provisions agreed under Terms or implied by law, Data Phase’ cumulative liability during the Term (and any renewals) for all actions, claims and defaults including negligence will be limited in aggregate as follows:
- for injury to or death of natural persons or damage to or loss of tangible property is limited to its insurance.
- for any other damage or loss, is limited to the lesser of either:
- the amount of actual direct damage or loss, or
- the amount paid by the Customer to Data Phase in the last 12-month period in relation to actual Service and/or Product that gave rise to the claim.
In connection with the provision of the Services, Data Phase will have and maintain for the Term valid and enforceable insurance policies for:
- all insurance cover that Data Phase is required to effect and maintain under any law (including worker’s compensation insurance);
- public liability insurance.
- if applicable, any specified insurance policy
- Variations to Terms
No terms in a customer purchase order amend or prevail Terms and shall be deemed to be null and void. Terms cannot be varied, except by agreement in writing signed by Data Phase and the Customer. If either party wishes to vary Terms, the proposing party shall submit proposed variations to the other party (the receiving party) in writing, specifying a reasonable period in which the receiving party is to provide written notice of acceptance or rejections of the proposal. If the receiving party accepts the variations, the Terms will be deemed to be so amended from the date of acceptance. If the receiving party rejects the proposed variations, unvaried Terms will continue to be in effect and operational.
Each party agrees to keep confidential information and data which is marked or by its nature private and confidential (Confidential Information). Parties shall protect, not disclose, or use Confidential Information for its own benefit. Confidential Information and data shall be handled, stored, and migrated without loss, destruction, corruption, alteration or any reduction in accessibility or usability. Parties will maintain strict security in relation to the Confidential Information and will take such steps to safeguard it from unlawful or accidental disclosure, as they would prudently take to safeguard their own Confidential Information of a similar type. If a party became aware of, or suspect any disclosure, unauthorized use, removal or copying of Confidential Information that conflicts with Terms, the party will:
- take commercially reasonable steps to stop that unauthorized disclosure, use or copying; and
- notify the other party of such unauthorized use of the confidential information; and
- if directed by the other party:
- destroy Confidential Information.
- assist with required confidentiality breach investigation.
These Terms are to be construed subject to the laws and courts of New South Wales, Australia. Customer shall at all-times keep Data Phase informed of any known non-compliance or threatened non-compliance with the Terms listed here-above. If any provisions are held invalid, void, illegal or unenforceable, the validity, existence, legality, and enforceability of the remaining provisions shall not be affected, prejudiced, or impaired. Customer agrees that Data Phase may include Customer’s name or logo in Marketing Material or Data Phase’s website indicating to the public that Customer is using its Product(s) and/or Service(s). Products, including technical information, software and services of overseas origin may be subject to export, re-export, information control or other laws. The Customer agrees to comply with these laws in their use in the event of a re-export.